When Plaintiff's Lawyers Go Too Far

My partner Richard Tuschman has blogged extensively on this site about the unusually high number of Fair Labor Standards Act lawsuits Florida employers face.  The state leads the nation in these suits.  Clients often ask why that is so, and in response I usually give credit to the enterprising plaintiff's bar here, especially in South Florida.  Disgruntled ex-employees often consult with plaintiff's employment lawyers about bringing some type of wrongful termination suit, but the lawyers often end up advising that the clients file FLSA overtime suits instead, because the lawyers know that employers often settle these cases early to avoid mounting legal fees. 

Of course, that is not the only way plaintiff's employment lawyers get FLSA cases.  Some rely upon their contacts within the bar and local community to investigate and build cases against large employers.  Because these cases can be filed as "collective actions", with numerous plaintiffs in one case, large employers are especially vulnerable to these suits.

A recent case out of a federal court in Minnesota illustrates the lengths that plaintiff's employment attorneys will go to build their cases, and the trouble they can get into by going too far.  The plaintiff's law firm at issue there, Halunen and Associates, sued Target Corporation for allegedly misclassifying some of its executives as exempt.   One of the named plaintiffs, Linda Gifford, had come to the law firm with complaints of employment discrimination and retaliation, but the lawyers thought that an FLSA claim had more merit. 

The lawyers investigated the claim for several months before bringing suit.  During that investigatory period, the firm was approached by another employee of the same company, this time an executive that the Court refers to as "Jane Doe".  Doe worked in a sensitive position with the company, and was privy to confidential and attorney-client privileged information.  Like Gifford, Doe came to the firm with questions related to the potential termination of her employment.  The firm, however, was also interested in Doe's knowledge of the issues relating to the potential FLSA suit it was investigating, and obtained  information from Doe to use to support that suit.

After the firm filed the FLSA suit, the company got wind of the conversations between the firm and Doe about the FLSA issues, and moved to disqualify the firm from representing the FLSA plaintiffs.  The Court granted the motion because the firm had "pushed ethical boundaries when it chose to represent Doe while simultaneously investigating" the FLSA suit.  The Court reasoned that Doe had disclosed confidential and attorney-client privileged information to the firm, and that allowing the firm to continue litigating the case "potentially undermines public confidence in the legal profession."

I, of course, have no information about this case other than what is contained in the Court's Order.  But, I think the lesson here for employers (and their attorneys) is to think long and hard about how the plaintiff's employment firms they are litigating against obtained the case in the first place.  If you do a little bit of digging, you might learn that the plaintiff's firm knows a lot more about your operation than you think, or than they should. 

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