The opinion of the court was delivered by: WOLIN
Currently before the Court is the motion of defendant Prudential Insurance Company of America ("Prudential") for a protective order restricting plaintiffs' attorneys from ex parte contact with present and former Prudential employees. Pursuant to the instructions set forth below, Prudential's motion will be granted.
This case involves allegations that Prudential engaged in various practices and schemes to defraud customers by misrepresenting the nature and potential cost of certain insurance products. After numerous plaintiffs -- as individuals and as proposed classes -- filed actions against Prudential across the country, the Judicial Panel on Multidistrict Litigation centralized them in this Court, on Prudential's motion, for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.
The plaintiffs may be grouped broadly into two categories: customers who assert that Prudential defrauded them (the "customers"), and former sales agents who allege that Prudential wrongfully terminated their employment when they refused to cooperate in Prudential's allegedly fraudulent practices (the "agents"). Most of the customers have joined to move for certification of a national class. Certain customers have stated their intention to proceed independently and move to transfer or remand; the Court has already denied one such application. Prudential has moved to stay the agents' actions in favor of arbitration and to dismiss certain agents' claims on the ground that they are preempted by section 301 of the Labor Management Relations Act. Accordingly, the parameters of the litigation before this Court are not yet fully established.
The subject of this motion is the scope of plaintiffs' attorneys' ethical obligation to refrain from contacting Prudential's current and former employees ex parte.
1. Which Ethics Rules Apply?
It is clear that, pursuant to General Rule 6A of the United States District Court for the District of New Jersey ("General Rule 6A"),
the parties must comply with New Jersey Rule of Professional Conduct ("RPC") 4.2, as interpreted by New Jersey Courts and the Third Circuit. The proposed national class action plaintiffs (the "proposed national class") and the agents contend that attorneys who litigate in this Court are governed solely by the Rules of Professional Conduct as interpreted by the New Jersey courts, and point out that the New Jersey Supreme Court has spoken definitively on the subject of RPC 4.2 in Matter of Opinion 668 of the Advisory Committee on Professional Ethics, 134 N.J. 294, 633 A.2d 959 (1993) ("Opinion 668").
Prudential, on the other hand, contends that attorneys involved in this case are also subject to various other ethical rules. Prudential argues that the New York law firm of Milberg Weiss Bershad Hynes & Lerach ("Milberg Weiss"), lead counsel for the proposed national class, is subject to New York ethical rules, as are any individual attorneys to whom it delegates work; that all individual attorneys are also subject to the rules of the jurisdiction in which they principally practice; and that all attorneys are subject to the ethical rules that obtain in any location where they conduct an interview and in any jurisdiction where the case for which the interview is conducted may ultimately be tried.
Both Prudential and the proposed national class have referred the Court to ABA Model Rule 8.5 ("ABA Rule 8.5"), the most recent amendments to which New Jersey has not yet adopted. New Jersey's version of Rule 8.5 ("New Jersey Rule 8.5") provides: "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." The 1993 amendment to ABA Rule 8.5 adds a choice of law provision. In relevant part, it reads:
In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise . . . .
Since it is not clear from the text of New Jersey Rule 8.5 which ethics rules a court is to apply when an attorney commits an ethical violation outside the jurisdiction, and the New Jersey Supreme Court has apparently not addressed the choice of law issue, General Rule 6A authorizes this Court to fashion its own rule.
This Court, guided by its prediction of what the New Jersey Supreme Court ...