Risk Update

DQ Denied — Not All Lawyer Contact Creates Conflict

Posted Dan Bressler

Karen Rubin writes: “No DQ for contacting represented party on a different subject, district court says” —

  • “The scope of the ‘no-contact rule’ — barring a lawyer from communicating with represented persons — is spotlighted in a disqualification ruling that a Florida district court handed down earlier this month. The opinion is a reminder that the prohibition against contact (without permission of the person’s counsel) extends only to ‘the subject of the representation.”
  • “The plaintiff sued the defendant collection agency in the Middle District of Florida for allegedly violating the federal Fair Debt Collection Practices Act; she was represented by the Agruss Law Firm. In early November, according to the collection agency, Agruss employees contacted it twice, even though the firm knew that the collection agency was represented by counsel in the plaintiff’s case.”
  • “The law firm explained in its brief in opposition to disqualification that it frequently represents plaintiffs in FDCPA actions. It acknowledged that on one of the dates in question a paralegal of the firm had phoned the collection agency — but it submitted unrebutted affidavit evidence that the call did not relate to the plaintiff’s case in the Florida action. Rather, said the law firm, its paralegal had called the collection agency in order to investigate a potential FDCPA claim against the collection agency by a completely different person. The law firm later filed a separate complaint in the Northern District of Texas against the collection agency on that person’s behalf.”
  • “A second call to the collection agency was made a few days later by a principal of the Agruss firm, who simply listened to the agency’s outgoing voicemail message, and who never spoke to anyone at the agency, according to a second affidavit.”
  • “Although the evidence showed that the Agruss firm had contacted the defendant collection agency directly, the court said, it was about a completely different case. Therefore, the contact was not ‘about the subject of the representation,’ as would be necessary in order to demonstrate a violation of the rule, according to the court.”

For more on the “no contact” rule, see the complete post.