February 18, 2020 Top Story

Despite Soliciting Witnesses from Opponent, Counsel Remains

Contact with adverse party’s employee results in notes’ production

By Mark A. Flores

Plaintiff’s counsel called a witness he hoped would give favorable testimony. The only problem was that this witness, a high-level professor, worked for the defendant university. Moreover, plaintiff’s counsel admitted the contact “was an inadvertent technical violation of the [ethical] Rule.”

The only problem with the plaintiff's witness was that he worked for the defendant university as a professor.

The only problem with the plaintiff's witness was that he worked for the defendant university as a professor.

iStockphoto by Getty Images

Later, plaintiff’s counsel admitted to talking with a second non-managerial employee. The university’s counsel moved to disqualify plaintiff’s counsel, and eventually, the court entered an order requiring plaintiff’s counsel to turn over all his interview notes with the witness.

The U.S. District Court for the District of Connecticut in Metcalf v. Yale University considered these facts and all of its options in fashioning a remedy for this violation of the ethical rules. While the college’s counsel believed disqualification necessary because counsel had discussed confidential information about trial strategy with the witness, the court disagreed, denying the motion without prejudice to renew.

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