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PHILADELPHIA � No ethical rules are violated when a plaintiff lawyer in an employment discrimination case communicates directly with another employee of the company if that worker is not in a position of authority and does not communicate regularly with the company’s lawyers, the Third Circuit U.S. Court of Appeals has ruled. In its eight-page unpublished decision in EEOC v. HORA Inc., a unanimous three-judge panel reversed a decision by U.S. District Judge Gene E.K. Pratter to disqualify attorney Jana Barnett of Wyomissing, Pa., saying Pratter had abused her discretion by “imposing the severe sanction of disqualification.” In June 2005, Pratter disqualified Barnett in a sexual harassment suit after finding that she improperly communicated with an employee who had access to confidential information and, in a series of e-mails, “manipulated” the employee in order to get access to privileged and confidential information. The Equal Employment Opportunity Commission originally filed the case and Barnett later intervened as a private lawyer for plaintiff Manessta Beverly. Pratter’s ruling was a harsh rebuke to Barnett, saying “every litigator knows that the discovery process has certain formal and informal rules. Ms. Barnett broke or ignored many of them.” In her e-mails with HORA employee Deborah Richardson, Pratter found that Barnett had used Richardson “as an informational mole” and then used the information to persuade the EEOC to take up the case. Barnett’s “repeated manipulation” of Richardson was “a blatant violation of Pennsylvania’s professional rules,” Pratter found. Now the Third Circuit has ruled that Pratter erred in finding that Barnett violated any of Pennsylvania’s ethics rules. Writing for the court, visiting Ninth Circuit Judge A. Wallace Tashima found that Rule 4.2 of the Pennsylvania Rules of Professional Conduct prohibits direct communication with an unrepresented worker only when the worker “supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter.” As a result, Tashima said, Rule 4.2 “would have prohibited communication between Barnett and Richardson if Richardson were an employee who regularly consulted with [HORA's] lawyer regarding the matter, or if she had authority to obligate [the company] with respect to the matter, or if her acts in connection with the harassment claim could be imputed to [HORA] for liability purposes.” Tashima, who was joined by Third Circuit Judges Maryanne Trump Barry and Michael Chagares, concluded that “Richardson’s role at Days Inn did not bring her within the scope of Rule 4.2.” There was no evidence, Tashima said, “to support the conclusion that Richardson regularly consulted with defendants’ lawyer regarding the matter or that her acts or omissions could obligate or impute liability to defendants.” Richardson’s role as an administrative assistant, Tashima said, “is different from that of the employees in cases in which Rule 4.2 has been found to apply.” But even if Richardson were covered by Rule 4.2, Tashima said, Pratter’s decision failed to show how HORA would be prejudiced by Barnett’s communications with Richardson. Tashima noted that the company’s lawyer had conceded at the hearing on the motion to disqualify Barnett that all of the information that Barnett received from Richardson was disclosed during discovery. “Because defendants accordingly were not prejudiced by Barnett’s communications with Richardson, the draconian measure of disqualification was not warranted,” Tashima wrote. Tashima also found there was no evidence to support Pratter’s finding that Barnett had violated Rule 4.4, which prohibits a lawyer from using methods of obtaining evidence that violate the legal rights of a third person. “To repeat, all of the evidence that Barnett received from Richardson was produced during discovery, and there is no indication that defendants were prejudiced by Barnett’s receipt of the evidence,” Tashima wrote. “Nor is there evidence to support the district court’s conclusion that Barnett encouraged Richardson to disclose to her all the information she learned through her employment,” Tashima wrote. Barnett’s lawyer, Stephen Neuberger of the Neuberger Firm in Wilmington, Del., said he was pleased with the court’s ruling because it “vindicates” Barnett and “clears her good name.” Court records show that soon after Barnett was disqualified, the case settled. According to the court’s docket, the defendants agreed to pay $12,000 to Beverly and promised in a consent decree not to retaliate against any workers who had cooperated with the EEOC in its investigation of the case. In the suit, Beverly claimed that when she was working as a night auditor at a Days Inn hotel in Reading, she was fired after she complained that she was being sexually harassed by a co-worker. The EEOC filed suit on Beverly’s behalf, alleging a claim under Title VII, and naming as defendants HORA Inc., the owner of the hotel, and Marshall Management Inc., a Maryland company hired to manage it. Shannon P. Duffy is a reporter with The Legal Intelligencer, a Recorder affiliate based in Philadelphia.

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