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A federal judge has disqualified a plaintiffs lawyer 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. In her 37-page opinion in EEOC v. HORA Inc., U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvaniadisqualified attorney Jana Barnett of Wyomissing, Pa., from continuing to represent Manessta Beverly. (The Equal Employment Opportunity Commission originally filed the case and Barnett later intervened as a private lawyer acting as co-counsel.) “Every litigator knows that the discovery process has certain formal and informal rules. Ms. Barnett broke or ignored many of them,” Pratter wrote. “While some lawyers look at discovery with something of a Darwinian eye, the ethical rules should not be perused as if they were on an a la carte menu. Ms. Barnett is not permitted to pick and choose which ethical rules to ignore or misinterpret simply because avoidance or abuse of those rules seems conveniently more beneficial to her client,” Pratter wrote. Pratter found that Barnett, in her e-mails with HORA employee Deborah Richardson, 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. As a result, Pratter concluded that Barnett “has not only violated her adversaries’ legal rights that permit an appropriately calculated and sometimes negotiated flow of information through the traditional discovery process, but she also contemporaneously risked undermining the EEOC’s official role and thwarted policies underlying a number of ethical rules.” After reviewing all of the e-mails, Pratter concluded that Barnett had “conducted a surrogate-like EEOC investigation” without HORA’s knowledge. As a result, Pratter granted a joint motion brought by lawyers for all of the defendants in the suit that said Barnett had “engaged in professional and ethical violations” and therefore “cannot effectively represent her client because of the conflicts she has created for herself in this case.” The motion was filed by attorneys Daniel P. O’Meara and Beth A. Friel of Montgomery McCracken Walker & Rhoads; Howard K. Kurman and Laura L. Hoppenstein of Offit Kurman Yumkas & Denick in Owings Mills, Md.; and Andrew N. Howe of Hartman Hartman Howe & Allerton in Reading, Pa. Barnett, in an interview, said that she was “rethinking some of my conduct in light of the judge’s decision.” According to court papers, Beverly worked as a night auditor at a Days Inn hotel in Reading and claims that she was fired when 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. Barnett later intervened in the case, filing a complaint that added a claim under the Pennsylvania Human Relations Act. In their motion seeking Barnett’s disqualification, the defense lawyers contended that Barnett had a series of improper communications with Richardson, the administrative assistant to the hotel’s general manager, Daryl Carr, and to HORA’s part-owner and senior on-site officer, Anna Koutroulelis. Pratter found that the e-mails between Barnett and Richardson began in August 2002 — about seven months before Barnett filed Beverly’s complaint with the EEOC. In the e-mails, Pratter found that Barnett “either sought or received information from Ms. Richardson that Ms. Barnett, as an attorney practicing in the field of employment law, knew or should have known was the hotel’s and Marshall’s confidential business and personnel information.” Pratter also found that Barnett “knew or should have known that some of that information was directly related to the hotel’s and Marshall’s defense,” and that Richardson “was a secretly, but vehemently, disgruntled hotel employee who occupied a position of intimate business trust at the high level of hotel management.” As a result, Pratter concluded that Barnett had thwarted the rules that govern discovery by gathering information from a “mole” employee, and in doing so had violated several ethical rules. She concluded that the only cure was to disqualify her because her continuing on the case would prejudice the defendants. “The discovery rules are necessary because once information has been improperly obtained, it is nearly impossible to return the parties to the equitable position that existed prior to the improper disclosure. Here, the court is in the position of requiring the barn to be locked after much of the livestock has been given away by a farmhand and butchered,” Pratter wrote. Barnett argued that Richardson was acting on her own initiative when she supplied the information. Pratter disagreed, saying Barnett “apparently believes that if such a characterization could be supported by the record thus presented, it should insulate her from criticism inasmuch as Richardson could be seen as a self-motivated conduit for unsolicited, albeit helpful, information.” But the evidence, Pratter said, “presents a significantly different version of events.” Pratter found that “Barnett’s claim that the information she received was unsolicited and provided without her encouragement is seriously undermined and contradicted by the documented written e-mail exchanges between Barnett and Richardson in which Barnett explicitly encouraged Richardson’s disclosures.” According to the opinion, in one of the e-mail exchanges, Richardson said she had reviewed the personnel file of the alleged harasser, Nelson Garcia, for evidence of written discipline, but found none. In another e-mail, Richardson told Barnett that Garcia had been fired and that Richardson had also learned that he was on parole and had a “restraining order out on him for harassment.” Pratter found that Richardson’s discussion of Garcia’s alleged criminal records was “obvious office gossip,” and that, in her reply to that e-mail, Barnett displayed an “unlawyer-like disregard for the reputation of a third party.” According to the opinion, Barnett wrote: “Thanks for the update. I’m very glad that they took this step. Although it’s clear that you cared about your co-workers, you were most concerned about the unsuspecting female guests [at the hotel] who were sleeping and unaware of the fact that an ex-con had been given access to the keys to their rooms. While we don’t know what he was convicted of, his behavior towards his co-workers indicated that he didn’t respect boundaries, so your fears had free reign.” Pratter noted that Richardson’s e-mails to Barnett made “no prior mention of such concern about ‘female guests,’ and no evidence has been presented that the hotel had ever had complaints from its clientele in such regard.” In a lengthy section of the opinion, Pratter analyzed Barnett’s conduct under the Pennsylvania Rules of Professional Conduct and concluded that she had violated three rules — rules 4.2, 4.4 and 8.4. In finding a Rule 4.2 violation, Pratter said: “At a minimum, Ms. Barnett should have considered awaiting the institution of proper discovery procedures, notifying the hotel or Marshall of her interest to speak with Ms. Richardson without representation (after advising Richardson of her right to representation) or considering other appropriate actions to prevent possible spoliation of evidence.” In declaring that Rule 4.4 was also violated, Pratter said that the court “shares defendants’ deep concerns that Ms. Barnett misrepresented Ms. Richardson’s allegations as factual [in proceedings before the EEOC] and those statements have been repeated to the parties and to the court.” Finally, Pratter found that Barnett “knowingly violated Rule 8.4 by surreptitiously inducing Richardson to assist Barnett in violating the ethical rules by providing privileged documents and information without defendants’ permission.” In her closing paragraphs, Pratter considered whether disqualification was the proper remedy for Barnett’s actions. She decided it was. “Giving Ms. Barnett the benefit of the doubt, many of the professional conduct issues in the instant matter may be considered by some practitioners to be unsettled. Nonetheless, considering the questionable propriety of Ms. Barnett’s continued correspondence with Ms. Richardson, Barnett should not have unilaterally communicated with her for such an extended period,” Pratter wrote. “Instead, Ms. Barnett should have informed the hotel’s or Marshall’s counsel of her intent to speak with Ms. Richardson � . Similarly, using Richardson as the cornerstone for urging EEOC action without having considered Richardson’s obvious credibility issues bespeaks a recklessness that bodes ill,” Pratter wrote.

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