WEST VIRGINIA RECORD

CHARLESTON – The law firm Steptoe & Johnson won’t be disqualified from representing a group of former Verizon workers in class action lawsuits against the company.

The state Supreme Court ruled March 7 that attorney Larry Rector can proceed with his representation of the group, which alleges Verizon engaged in employment discrimination based on disabilities or perceived disabilities.

Verizon had argued that Rector’s previous representation of two plaintiffs and his intent to use evidence filed under seal during their lawsuits on subsequent lawsuits presented a conflict of interest.

“While cases warranting the disqualification of counsel do arise, the instant matter, simply, is not one of them,” Justice Robin Davis wrote for the court.

“Counsel are reminded to faithfully abide by the Rules of Professional Conduct and to refrain from using these ethical guides to engender and perpetuate hostility between adversaries in litigation.”

Davis cited a previous court ruling that offered cautionary words regarding the filing of disqualification motions.

“(D)isqualification, as a prophylactic device for protecting the attorney-client relationship is a drastic measure which courts should hesitate to impose except when absolutely necessary,” the opinion says.

“A disqualification of counsel, while protecting the attorney-client relationship, also serves to destroy a relationship of their own choosing… (S)uch motions should be viewed with extreme caution for they can be misused as techniques of harassment.”

In 2009, Steptoe filed a lawsuit on behalf of a former Verizon employee alleging wrongful termination and violation of the state Human Rights Act in Harrison County Circuit Court. During the course of the litigation, the two sides agreed on a protective order to secure the confidentiality of certain documents disclosed in discovery.

A subsequent lawsuit filed in 2010 also featured a similar order that allowed Steptoe to use the confidential documents obtained during the first lawsuit.

Both lawsuits eventually settled. Steptoe then filed lawsuits on behalf of nine other former Verizon employees and two class action lawsuits.

Rector indicated that he might use some of the confidential documents from the first case for his current cases in an attempt to avoid duplicative discovery costs.

On Sept. 28, 2011, Verizon moved to disqualify the firm from representing the plaintiffs based upon that intention and an indication that he might call his former clients as witnesses in the current cases.

Rector responded by saying he would only use information obtained in the first two cases unless it was produced in the current cases.

The West Virginia Rules of Professional Conduct prohibit an attorney from representing a client where such representation would be materially limited by the attorney’s obligations to a former client. Rector’s current clients submitted affidavits that reflected their consent to continuing representation by Steptoe & Johnson.

The circuit court then ruled that because Steptoe did not obtain consents from the first two clients that it was disqualified. However, the firm was granted 10 days to obtain the consents and did.

On Aug. 24, the circuit court denied Verizon’s motion to disqualify.

“At issue are the obligations imposed upon Steptoe by the agreed protective orders and confidential settlement agreements entered in the Rowh and Radcliff cases,” Davis wrote.

“However, Verizon has not demonstrated that Steptoe has violated either of these provisions, and the terms of these documents simply do not restrict Steptoe’s representation of subsequent clients in substantially related matters.

“Neither do they prohibit Steptoe, in the current litigation, from requesting the same information through discovery that Verizon disclosed in the prior cases or from obtaining a new protective order to protect this information once it has been disclosed within the confines of the case.”

Davis added that that Verizon’s concern that Steptoe may call its former clients as witnesses is unfounded.

“Both of the confidential settlement agreements entered into in the underlying proceedings expressly permit the employee to disclose the terms thereof ‘to the extent that she… has been subpoenaed or otherwise ordered to make such disclosure by a court…’ or ‘as compelled by law or court order.’”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.