A federal judge in Trenton has drawn a line against an employer's law firm using private investigators to conduct ex parte interviews of claimants in a suit brought by the Equal Employment Opportunity Commission.
U.S. Magistrate Judge Douglas Arpert ordered DeCotiis, FitzPatrick & Cole of Teaneck to halt the interviews, and to disclose and not use materials obtained from them.
The EEOC claimed that George Frino and Avis Bishop-Thompson of the firm violated Rule of Professional Conduct 4.2 by communicating directly with people they knew, or should know, were represented.
The lawyers contended they were free to make the contacts because no attorney-client relationship existed between the EEOC and the 28 claimants.
Arpert reached no conclusion on that point but he found that the investigators failed to make clear they were working for the defendant and failed to exercise diligence in finding out whether the claimants were represented. Arpert said "there is nonetheless sufficient indicia of wrongdoing for the court to conclude some level of misconduct occurred."
Frino and Bishop-Thompson represent FAPS Inc., formerly known as Foreign Auto Preparation Service, which provides services to vehicle importers and exporters at the Port of Newark.
The suit, EEOC v. FAPS Inc., alleges that the company's word-of-mouth recruitment plan for vacancies had a disparate impact on African-American job applicants. The 28 claimants had been denied employment.
The EEOC seeks to "correct unlawful employment practices on the basis of race" and to "provide relief to a class of potential and actual litigants who were adversely affected by such practices."
On June 27, licensed private investigators hired by FAPS began the interviews to "get to the bottom of what exactly supports the assertion of the government's claim."
Neither the court nor the EEOC was notified that FAPS had retained the investigators and was engaging in discovery, in violation of a June 14 end date, Arpert said.
As it happened, the EEOC's expert witnesses also conducted discovery beyond the deadline by mailing questionnaires and making telephone calls to try to locate additional FAPS applicants.
Arpert noted that "case law is not definitive regarding the moment when the EEOC enters into an attorney-client relationship with members of the class it seeks to represent." Some courts require evidence that potential claimants expressly contacted the EEOC to represent them or at least affidavits stating that they sought legal advice from the EEOC with the understanding that their communications were confidential.
But courts are more likely to find attorney-client relationships when the claimants are current employees of the defendant. Arpert said that since the claimants are not FAPS employees, there is a stronger presumption against the existence of an attorney-client relationship than in support of it.
Ultimately, Arpert avoided deciding the question and instead applied sanctions under Fed. R. Civ. P. 37 for DeCotiis FitzPatrick's failure to comply with the order ending discovery.
He denied the EEOC's request for an order permitting it to depose the investigators.
Frino says the firm opted to seek the interviews because both sides were limited to 10 depositions each. He says no decision has been made on an appeal.
EEOC lawyer Rosemary DiSavino, who filed the suit, declines to comment.
Alan Hyde, who teaches employment law at Rutgers Law School-Newark, calls the ruling "a wise resolution because there is no happy answer to the problem of defining the attorney-client relationship."
"Eventually, someone will have to work out the rules for this relationship, which is not like any other relationship in administrative law, not exactly an attorney-client relationship, but not exactly not an attorney-client relationship. Until this happens, we may expect judges to duck the issue," says Hyde.
Michael Homans, a labor and employment lawyer at Flaster/Greenberg in Cherry Hill, says the investigators' conduct, in misleading claimaints and continuing to question them after learning they were represented, seems to have upset the judge.
He says the case serves as a reminder that "you have to be careful before proceeding with any type of interview with parties on the other side."