CHICAGO — A federal judge has imposed sanctions on a law firm, working for defendants in a class action, after determining one of its lawyers improperly contacted a named plaintiff.
U.S. District Magistrate Judge Sunil Harjani issued an opinion and order Jan. 26 regarding the conduct of Katten Muchin Rosenman, of Chicago, which was defending timeshare resort operator Club Exploria concerning alleged violations of the federal Telephone Consumer Protection Act (TCPA.)
George Moore filed the putative class action, alleging Exploria placed telemarketing calls to his phone without consent. According to Harjani’s opinion, the club said its vendor for those calls hired a subvendor who secured consent to call the number, but indicated it was associated with a Donald Jorgensen. Exploria said a Donald and Patricia Jorgensen were associated with Moore’s number as recently as September.
With that information, Harjani continued, attorney David Washburn “called Moore’s alleged phone number to test the research indicating that Donald Jorgensen, and not Moore, would answer the call. Moore ultimately picked up the phone on Oct. 27, 2020.”
During that call, Washburn identified himself — but not the law firm — and said “Don” provided the number, but Moore said he’d had the number for 20 years. After Moore mentioned the call to his lawyers, Exploria sent an email summarizing Washburn’s call. At a Jan. 6 hearing, Exploria’s lawyers said Moore’s account was accurate.
Moore moved for sanctions, citing the American Bar Association’s “anti-contact” rule. He asked that Katten be disqualified from representing Exploria and produce any documents regarding Jorgensen and the phone number.
Harjani agreed with Moore, writing that although the call was brief, “Washburn purposefully called a number that was repeatedly disclosed in this litigation as Moore’s phone number, without the consent of Moore’s counsel. Then, even after Moore identified himself on the call, Washburn continued the conversation and made misstatements about who he was and about Donald Jorgensen, a figure central to Club Exploria’s theory of the case.”
However, Harjani said Moore’s requested sanctions were “too severe” and ordered only an award of legal fees and costs associated with the motion for sanctions.
According to Harjani, the “no-contact” rule has four policy goals: preventing lawyers from exploiting their advantage over laypeople' preserving the integrity of attorney-client relationships; preventing inadvertent disclosures; and facilitating settlements by keeping discussion between lawyers. He detailed several instances in which courts deemed even brief phone calls and emails to violate the rule, and said case record establishes attorneys should err on the side of conservativism.
In determining Washburn violated the rule, Harjani wrote it was clear he knew he was communicating with someone represented by another lawyer, that the contact concerned the legal matter at hand, and that he didn’t have that lawyer’s consent to contact a client. Although agreeing Washburn had reason to believe a Don Jorgensen would answer the phone, “there were plenty of warning signs” Moore would pick up, Harjani said, and “Washburn did not just call any phone number disclosed in discovery, he called the subject phone number at the heart of this lawsuit.”
Harjani also said Washburn lied when he told Moore that Jorgensen provided the phone number; heard information consistent with discovery before Moore identified himself; and didn’t immediately end the call upon Moore’s direct identification. He explained Washburn’s call was expressly related to the underlying litigation and that it’s clear Moore’s lawyers didn’t grant consent for Washburn to call.
However, Harjani also said Moore failed to meet the “heavy” burden of proving Washburn’s firm should be disqualified. Though the call violated professional ethics, it didn’t jeopardize Moore’s lawsuit — “he did not state anything that was new or sensitive” — and Exploria said it wouldn’t use anything from the call in its defense. He likewise said compelled records production isn’t warranted because Exploria “already produced non-privileged portions of the documents that led Washburn to believe that Donald Jorgensen was connected to the subject phone number.”
Ultimately, Harjani wrote, “The combination of this opinion identifying Washburn’s violation and the award of fees and costs is a sufficient and proportional remedy.”
Moore is represented in the action by attorney Keith Keogh and others with the firm of Keogh Law, of Chicago.