## Facts

- Multiple wrongful-death actions arising from the October 31, 1994 crash of American Eagle Flight 4184 near Roselawn, Indiana were consolidated in federal multidistrict litigation in the Northern District of Illinois.
- During the litigation and an ongoing federal crash investigation, plaintiffs’ counsel arranged for Safety Research Corporation of America to send a questionnaire to Simmons Airlines pilots who were current employees of airline defendants represented by counsel in the case.
- The questionnaire solicited information about pilots’ training and experience in icing conditions, a subject central to both the litigation and the investigation.
- The cover materials described the questionnaire as an “independent” survey and did not disclose that it was prepared at the request of plaintiffs’ counsel in connection with the litigation; the presentation also suggested possible association with or endorsement by a federal agency.
- Airline defendants moved for sanctions, asserting the questionnaire constituted prohibited ex parte communications with represented persons and misleading contact with unrepresented persons.

## Issues

1. Whether federal professional-conduct rules of the Northern District of Illinois governed attorney conduct occurring while the cases were pending in federal court.
2. Whether sending a litigation-related questionnaire to airline-employee pilots constituted prohibited ex parte communications with represented persons under Rule 4.2.
3. Whether the failure to disclose counsel’s role and the “independent” framing of the survey violated Rule 4.3 governing contacts with unrepresented persons.
4. Whether plaintiffs’ counsel separately violated rules concerning an employer’s ability (through counsel) to instruct employees not to provide information voluntarily to opposing counsel.

## Decision

- The court applied the Northern District of Illinois professional-conduct rules to the challenged conduct because it occurred while the matters were pending in federal court.
- The court found plaintiffs’ counsel violated Rule 4.2 by causing the questionnaire to be sent to pilots who were treated as represented persons in the corporate-party context, where their statements could be attributable to the airline and the communication concerned the subject of the representation.
- The court found plaintiffs’ counsel violated Rule 4.3 by misleading recipients about counsel’s role and the survey’s purpose and source through nondisclosure and the “independent” characterization with implied government association.
- The court did not find a separate violation of rules concerning interference with employer/defense-counsel instructions to employees.
- The court imposed sanctions by ordering production of all returned questionnaires to defendants, barring further distribution of the questionnaire, and excluding the questionnaire responses from evidence.

## Legal Principles

- In federal proceedings, the forum court’s professional-conduct rules govern attorney behavior occurring while the case is pending in federal court, even if the litigation began in state court.
- Under Rule 4.2 in the corporate setting, certain employees may be treated as represented persons when their acts or omissions are at issue or their statements may be admissible against the employer; opposing counsel may not communicate with them about the matter without consent or authorization.
- Using third parties to communicate with represented persons about the subject of the litigation can constitute prohibited ex parte contact.
- Under Rule 4.3, a lawyer dealing with an unrepresented person must not imply disinterest or mislead about the lawyer’s role; nondisclosure and framing a litigation-driven inquiry as “independent” may violate the rule.
- When an ethical question is apparent, counsel should seek consent, use the more restrictive course, or obtain court guidance rather than proceed unilaterally.

## Conclusion

The court sanctioned plaintiffs’ counsel for using a third-party “independent” survey to contact represented airline employees about matters central to the litigation and for misleading communications to unrepresented recipients, ordering disclosure of the survey results to defendants, prohibiting further distribution, and excluding the responses from evidence.


In re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 909 F. Supp. 1116 (N.D. Ill. 1995)