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Ethics rules prohibit a defense lawyer from conducting “informal interviews” of potential witnesses in a personal injury action, when the witnesses are also putative plaintiffs in a proposed class action suit involving the same alleged tortious conduct, without first getting the consent of the class action lawyer, a federal judge has ruled. In his nine-page opinion in Dondore v. NGK Metals Corp., U.S. District Judge Harvey Bartle III found that Rule 4.2 of the Pennsylvania Rules of Professional Conduct extends to all members of a class action — even before the class is certified. “As a practical matter, a court cannot decide the issue of class certification immediately upon the filing of the complaint. … Thus, certain benefits must be afforded the putative class members in the interim,” Bartle wrote. Until the issue of class certification is decided, Bartle said, the lawyers must be restrained in their communications with the putative class members. “If defense counsel or counsel otherwise adverse to their interests is allowed to interview and take statements from often unsophisticated putative class members without the approval of counsel who initiated the action, the benefits of class action litigation could be seriously undermined,” Bartle wrote. Bartle is presiding over two individual personal injury suits brought by Berks County, Pa., residents who claim they suffer from “chronic beryllium disease” as a result of living near a beryllium metal manufacturing facility in the Reading, Pa., area. Named as defendants in the suit are NGK Metals Corp., Cabot Corp. and Kawecki Chemicals Inc. The same three defendants are also named in Pohl v. NGK Metals Corp., a proposed class action medical monitoring suit filed in the Philadelphia Court of Common Pleas on behalf of “all residents who have ever resided within a six-mile radius of the Reading plant for at least six continuous months … between 1950 and 1989.” The ethical dispute began after the plaintiffs’ lawyer in the federal suit, Ruben Honik of Golumb & Honik, identified 96 neighbors and relatives of the two plaintiffs as potential witnesses. After Cabot Corp.’s lawyer, Neil S. Witkes of Manko Gold & Katcher, attempted to interview three of the witnesses, Honik and his co-counsel in the state court class-action, Howard Langer of Sandals & Langer, filed an emergency motion in state court demanding a protective order. Witkes responded by filing a motion in federal court that asked Bartle to “confirm” his right to interview potential witnesses about information related to the federal suits. The dispute, Bartle found, turned on the interpretation and application of Rule 4.2, which provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Bartle found that the issue raised three questions. “First, are the potential witnesses whom defense counsel seeks to interview ‘represented by another lawyer’ in the state class action? If they are, is the representation ‘in the matter’ about which defense counsel desires information, that is, are the federal tort actions part of the same matter as the state action? Finally, does Cabot’s lawyer seek to ‘communicate about the subject of the representation,’ or is the proposed interview about separate and independent issues?” Bartle wrote. Both sides agreed that the state class action and the individual federal cases concern the same matter — exposure to beryllium emanating from the defendants’ metals plant near Reading, Pa. Witkes argued that he wanted only to interview potential witnesses about issues unrelated to the state court action. Bartle disagreed, saying, “There is simply no practical way to accomplish this feat. The proposed communications will necessarily address issues that ‘overlap’ between the federal and state cases.” Whatever the potential witnesses might say about their knowledge of the health and beryllium exposure of the two federal plaintiffs, he said, “will necessarily include the witnesses’ knowledge about their own exposure to beryllium with significant ramifications for the defendants’ statute of limitations defense in both the state and federal actions.” As a result, Bartle was forced to tackle the first of the three questions — whether the members of the proposed class are “represented by a lawyer.” In the federal context, Bartle said, the Supreme Court has stated that a class action is “a truly representative suit” and that class action representation belongs to all parties, even class members who were unaware of the suit. The 3rd Circuit has taken that a step further, Bartle found, and held that putative class members “stand at least in a fiduciary relationship with class counsel.” As a result, Bartle found that “the mere initiation of a class action extends certain protections to potential class members,” who have been characterized by the Supreme Court as “passive beneficiaries of the action brought in their behalf.” For example, he said, the filing of a class action tolls the statute of limitations even for those who were unaware of the action and did not rely on it in refraining from filing their own motions for individual intervention or joinder. Protecting the interests of putative class members, he said, is necessary to meet the goal of a class action lawsuit to provide “a fair and efficient method for adjudication of the controversy.” Under Pennsylvania law, Bartle said, putative class members are “properly characterized as parties to the action.” As a result, he said, during the interim between the filing of the action and the certification of the class, unnamed class members have certain interests in the suit. Bartle concluded that the “truly representative” nature of a class action suit “affords its putative members certain rights and protections including, we believe, the protections contained in Rule 4.2 of the Rules of Professional Conduct.” The purpose of Rule 4.2, he said, “is to prevent lawyers from taking advantage of uncounseled lay persons and to preserve the efficacy and sanctity of the lawyer-client relationship.” If Cabot’s position were correct, Bartle said, “putative class members could hardly be described as even ‘passive beneficiaries’ of an asserted class action.” But Bartle stressed that his ruling “does not prevent Cabot from obtaining whatever information the potential witnesses may possess in connection with the individual cases before this court.” Cabot is free, he said, to subpoena and depose the witnesses. And if the state court decides not to certify the class, it would be free to question any of the witnesses since they would no longer be represented. According to court papers, Cabot operated the plant until 1986 when it was acquired by NGK. The plant ceased operations in March 2000 when NGK moved its operations to Tennessee. Beryllium is an extremely light and very hard metal with a high degree of conductivity that was used extensively in arms manufacturing and more recently in computers. The suits allege that airborne beryllium discharged from the plant can cause “chronic beryllium disease” or “berylliosis,” a pulmonary ailment with a very long latency period that is characterized by extensive scarring of the lung tissue. NGK is represented by Thomas C. DeLorenzo of Philadelphia-based Marshall Dennehey Warner Coleman & Goggin.

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