Friday, May 1, 2009

Prohibited Contacts With Employees Draws Reprimand

An Illinois hearing board has reprimanded an attorney who also has a pharmacy license for unauthorized communication with a represented party and conduct prejudicial to the administration of justice. The attorney initiated contact with Bayer Corporation through a consumer help line and obtained information that had been used in litigation without informing Bayer of his staus as an attorney. The conduct had drawn a rebuke from the federal ditrict court judge presiding over the litigation.

The factual predicate for the misconduct findings:

On or about June 17, 2005, Respondent contacted Bayer at the consumer help line number that was listed on the purchased package of extra-strength Neo-Synephrine and also on Bayer's web site.  Respondent left a voicemail message on the consumer help line that was listed on the purchased package for Bayer in which he identified himself as a pharmacist and asked whether Bayer had any information or articles on addiction and rebound congestion, the issues at stake in Case No. 04 CV 0114.

At no time during the voicemail message described...above did Respondent identify himself as a lawyer.

On June 20, 2005, Eileen Barry, the Senior Associate Director of Drug Safety, returned Respondent's telephone call.  Because Respondent had identified himself as a pharmacist, Ms. Barry believed that Respondent was a pharmacist inquiring on behalf of a customer, and she left a message on his voice-mail answering his initial questions about rebound congestion and Neo-Synephrine.

On June 20, 2005, Respondent again telephoned Bayer and left a voicemail message asking further questions regarding Neo-Synephrine.  Again, Respondent identified himself only as a pharmacist, not as a lawyer, during that voicemail message.

On or about June 28, 2005, Jadine Stephan, the Manager of Drug Safety for Bayer HealthCare LLC, Consumer Care Division, a subsidiary of Bayer, and a member of Bayer's control group, retrieved the voicemail message from Respondent described...above and returned his telephone call.  Believing that Respondent was a pharmacist inquiring on behalf of a customer, Ms. Stephan provided Respondent with information about discontinuance of nasal decongestants from the Textbook of Internal Medicine 5th Edition. 

At no time during the telephone conversation described...above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114.

On June 30, 2005, Respondent called Ms. Stephan and requested that she respond in writing to five specific questions regarding Neo-Synephrine as follows:

  1. how does Neo-Synephrine work, pre or post-synaptically;

  2. what causes rebound congestion;

  3. how is rebound congestion treated;

  4. are there any printed materials about Neo-Synephrine for health professionals; and

  5. was the 1% solution ever a prescription product.

Respondent also asked Ms. Stephan to telefax the answers to these questions to (847) 291-3436.

At no time during the telephone conversation described...above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114.  Nor did Respondent inform Ms. Stephan that the telefax number he gave her was the telefax number for his law practice or that the telefax would be sent to a lawyer's office.

On July 12, 2005, believing that Respondent was a pharmacist inquiring on behalf of a customer, Ms. Stephan telefaxed written responses to the questions listed in Paragraph 9 above to Respondent at the telefax number he had provided to her.

At all times related to the matters in this complaint, Respondent knew or should have known that Bayer was represented by attorneys in Case No. 04 CV 0114.

At no time did Respondent obtain the consent of lawyers from Bayer in Case No. 04 CV 0114 to contact Bayer's employees directly.

Based on the information he had obtained from Bayer and from Ms. Stephan in particular, Respondent assisted Holstein in drafting an Amended Complaint in Case No. 04 CV 0114.

I have seen disciplinary cases that suggest that a lawyer with a non-legal qualification (such as an accounting practice) can shed the "lawyer hat" for Rule 4.2 purposes. Missing from this case is an analysis of the extent to which Rule 4.2 applies to contacts with corporate employees. (Mike Frisch)

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