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Several corporate attorneys are contesting a U.S. magistrate judge’s recommendation that they be publicly reprimanded for their alleged involvement in a covert investigation in an Indiana racial discrimination suit. The probe involved the hiring of private investigators to pose as employees at a truck plant. The goal, according to court records, was to find out if racial hostility existed at the plant. “We clearly are contesting the findings,” said attorney Shanthi V. Gaur, one of three lawyers with San Francisco-based Littler Mendelson accused of alleged ethics violations. She declined to comment further. The other two Littler Mendelson lawyers accused of alleged ethics violations, David J. Parsons and Garrison L. Phillips, also declined to comment. Their attorney, Edward Feldman of Chicago’s Miller Shakman & Beem, did not return calls seeking comment. The sanction recommendation is pending before U.S. District Judge Richard Young of the Southern District of Indiana. The alleged lawyer misconduct stems from an employment discrimination suit filed against International Truck and Engine Corp., in which plaintiffs alleged that white employees at an Indianapolis plant harassed black employees. The case is still pending. Allen v. International Truck and Engine, No. 1:02-cv-0902-RLY-TAB (S.D. Ind.). On Sept. 6, U.S. Magistrate Judge Tim A. Baker ruled that five lawyers defending International Truck violated several ethics rules by directing a covert investigation that involved investigators posing as employees and contacting plaintiffs and potential class members. “Defendant’s counsel-both in-house and outside-were actively involved in this investigation’s conception, execution, and termination,” Baker wrote. He also said that while “evidence did not show that defense counsel affirmatively directed the investigators to contact” the plaintiffs, “the Court simply cannot condone Defendant’s ostrich-styled defense.” Baker added that “[d]efendant’s counsel’s culpability is compounded by their failure to affirmatively advise, instruct or otherwise act to prevent contact with represented employees or to prevent contact with unrepresented employees under false pretenses.” Baker also recommended reprimands for ethics violations for Gary Savine, in-house counsel to International Truck, and Robert Boardman, the company’s now-retired general counsel. Savine, through a company spokesman, declined to comment. Boardman was unavailable for comment. According to court documents, Boardman hired a private-investigation firm to conduct an undercover probe into racial graffiti and alleged racial hostility at the plant. The investigators posed as truck employees and recorded conversations with plant workers. Billing records cited According to court records, Boardman consulted with Littler Mendelson before and during the investigation. In court records, Parsons-one of the three Littler Mendelson attorneys accused of ethics violations-denied that any defense lawyers were involved in or directed the investigation. But Baker noted that attorney billing records showed Littler Mendelson lawyers were actively involved in and oversaw the undercover investigation. “Littler Mendelson’s billing records between June 9, 2003 and September 28, 2003 are replete with references to time spent by Littler Mendelson attorneys . . . regarding the undercover investigation.” While much of Baker’s report focused on the defense counsel, he admonished plaintiffs’ counsel for acting inappropriately by waiting several months to notify the defense counsel that they had inadvertently filed billing records documenting their involvement in the investigation. Baker held that plaintiffs’ counsel should have alerted the defense to that fact immediately, but rather “manipulated this error into a perceived litigation advantage.” The plaintiffs’ counsel, Fay Clayton of Chicago’s Robinson Curley & Clayton, declined to comment.

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