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SEVENTH CIRCUIT FINDS NO CONFLICT BETWEEN FELA PROVISION AND LOCAL RULE PROHIBITING EX PARTE CONTACT WITH REPRESENTED PARTY
Noting that the federal and state courts are split on the question, the Seventh Circuit recently held that a provision of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. 60, does not supersede or provide an exception to an ethical rule that prohibits attorneys from directly contacting parties represented by other counsel. Weibrecht v. Southern Illinois Transfer, Inc., 2001 WL 194429 (7th Cir. Feb. 27, 2001).
According to the court, Kenneth Weibrecht was a deckhand for Southern Illinois Transfer. On the morning of February 16, 1998, Kenneth and another Southern Illinois Transfer employee, Mike Bader, were in the process of attaching a barge to a tug. Bader was the pilot of the tug and was in charge of the operation; Kenneth's job was to disconnect the barge from another vessel so that it could be attached to the tug. During the operation, Kenneth somehow slipped into the water and drowned. No other Southern Illinois Transfer employees were present during the operation. After his father's death, Shane Weibrecht brought suit under the Jones Act, 46 U.S.C. App. sec688, which incorporates the FELA for the purposes relevant to the case. In it he alleged that Southern Illinois Transfer was negligent in not having more deckhands involved in the operation, in not requiring Kenneth to wear a life preserver, and in not maintaining the safety and seaworthiness of the barge Kenneth was working on.
The parties scheduled Bader's deposition for December 16, 1999. On December 14, Shane personally contacted Bader and discussed with him the Weibrechts' theory that there should have been at least two deckhands on the barge at the time of the accident. Shane also told Bader that the lawsuit was his mother's doing and that the purpose of the lawsuit was not to recover money but to make Southern Illinois Transfer a safer place to work. Shane then suggested that Bader should contact the Weibrechts' attorney, Michael McGlynn. The district court found (over McGlynn's protestations to the contrary) that Shane made this call to Bader at McGlynn's suggestion. In any event, it is undisputed that on the next day, McGlynn called the...