CSX Transportation, Inc. v. Gilkison et al

Filing 878

MEMORANDUM OPINION AND ORDER DENYING PEIRCE FIRM DEFENDANTS REQUEST FOR ORDER PROHIBITING CSX FROM CONTACTING CLIENTS; DENYING PEIRCE FIRM DEFENDANTS REQUEST FOR ORDER REQUIRING CSX TO PRODUCE LIST OF CLIENTS WHOM CSX HAS CONTACTED; DENYING PEIRCE FI RM DEFENDANTS REQUEST FOR ORDER GIVING PEIRCE FIRM ATTORNEY PERMISSION TO REPRESENT PEIRCE FIRM CLIENTS DURING DEPOSITIONS;DENYING AS MOOT CSXS 836 MOTION FOR EVIDENTIARY HEARING AND DENYING AS MOOT PEIRCE FIRM DEFENDANTS 838 MOTION TO STRIKE. Signed by Senior Judge Frederick P. Stamp, Jr on 11/9/11. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PEIRCE FIRM DEFENDANTS’ REQUEST FOR
ORDER PROHIBITING CSX FROM CONTACTING CLIENTS;
DENYING PEIRCE FIRM DEFENDANTS’ REQUEST FOR
ORDER REQUIRING CSX TO PRODUCE LIST OF
CLIENTS WHOM CSX HAS CONTACTED;
DENYING PEIRCE FIRM DEFENDANTS’ REQUEST FOR
ORDER GIVING PEIRCE FIRM ATTORNEY PERMISSION TO
REPRESENT PEIRCE FIRM CLIENTS DURING DEPOSITIONS;
DENYING AS MOOT CSX’S MOTION FOR EVIDENTIARY HEARING AND
DENYING AS MOOT PEIRCE FIRM DEFENDANTS’ MOTION TO STRIKE
I.

Background1

The plaintiff commenced the above-styled civil action by
filing a complaint in this Court on December 22, 2005.

The

plaintiff later filed an amended complaint on July 5, 2007. On May
2, 2008, after this Court granted the defendants’ motion to dismiss
various portions of the amended complaint, the plaintiff sought

1

For the purpose of resolving the pending client contact
issue, this Court believes that the following abbreviated summary
of this case is sufficient.

leave to file a second amended complaint.

This Court denied the

plaintiff’s motion for leave to file a second amended complaint on
the grounds that such amendment would be futile and would unduly
prejudice the defendants by extending discovery when it is not
necessary.

Thereafter, the case continued forward to trial and

judgment on the plaintiff’s May/Jayne fraud allegations and to
summary judgment for the defendants on the plaintiff’s remaining
claims.
Following the entry of this Court’s judgment in favor of the
defendants regarding the May/Jayne fraud, the plaintiff appealed to
the United States Court of Appeals for the Fourth Circuit.

In its

judgment of December 30, 2010, the Fourth Circuit upheld the jury’s
verdict as to the May/Jayne allegations but vacated the dismissal
of Counts One through Four of the amended complaint, reversed the
summary judgment as to what became known as the Baylor claims, and
held that the plaintiff should have been permitted to file the
second amended complaint.

On February 2, 2011, the Fourth Circuit

issued a mandate compelling further proceedings consistent with its
opinion.
Pursuant to this mandate, this Court held a status and
scheduling conference on March 7, 2011.

At that conference, the

parties discussed, among other things, the issue of whether CSX
Transportation, Inc. (“CSX”) should be permitted to contact clients
on whose behalf the Peirce Firm has filed asbestos-related claims.

2

On March 8, 2011, this Court issued an order confirming its
pronounced order at the hearing and setting a briefing schedule for
the client contact issue.2

This Court further directed CSX not to

contact any current or previous clients of the Peirce Firm until
this issue is fully briefed and decided.
In accordance with the briefing schedule set by this Court, on
April 6, 2011, defendants Robert N. Peirce, Jr., Louis A. Raimond,
and Mark T. Coulter (the “Peirce Firm defendants”) filed a brief
seeking to have this Court prevent CSX from contacting clients on
whose behalf the Peirce Firm has filed asbestos-related claims and
to permit the Peirce Firm to represent these clients during their
depositions.

CSX filed a response brief on May 6, 2011, to which

the Peirce Firm defendants replied on May 23, 2011.

On May 27,

2011, CSX filed a motion for an evidentiary hearing on the client
contact issue. Subsequently, the Peirce Firm defendants filed both
a response in opposition to the motion for an evidentiary hearing,

2

At the status and scheduling conference, this Court also
ordered that discovery in this case be stayed pending the
resolution of the defendants’ petition for certiorari to the United
States Supreme Court. On October 3, 2011 and October 4, 2011, the
parties informed this Court via facsimile letters that the United
States Supreme Court denied the defendants’ petition for
certiorari.
Pursuant to the orders of this Court granting the
plaintiff’s motion for leave to file a third amended complaint and
granting
the
defendants’
motion
for
permission
to
file
counterclaims, on October 19, 2011, both the third amended
complaint and counterclaims were filed.
This Court entered an
order lifting the stay on October 24, 2011. On October 25, 2011,
this Court entered an amended scheduling order that set forth new
deadlines for the completion of discovery and the filing of
dispositive motions, and as well established a new trial date.
3

as well as a motion to strike the motion for an evidentiary
hearing.

CSX later filed a consolidated response to the motion to

strike and reply in support of its motion for an evidentiary
hearing.

Finally, the Peirce Firm defendants filed a reply brief

in support of the motion to strike.

The client contact issue,

CSX’s motion for an evidentiary hearing, and the Peirce Firm
defendants’ motion to strike the motion for an evidentiary hearing
are all ripe for review and currently pending before this Court.
For the reasons set forth below, this Court denies the relief
requested by the Peirce Firm defendants in their brief to prevent
CSX from contacting their former clients, denies CSX’s motion for
an evidentiary hearing, and denies the Peirce Firm defendants’
motion to strike the motion for an evidentiary hearing.
II.

Applicable Law

Rule 4.2 of the West Virginia Rules of Professional Conduct
states:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a party the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
W. Va. Rules of Prof’l Conduct R. 4.2 (1989).

The substance of

this rule is identical to Rule 4.2 of the American Bar Association
(“ABA”) Model Rules of Professional Conduct (“Model Rules”).
Model Rules of Prof’l Conduct R. 4.2 (1989).
to Rule 4.2 provides, in pertinent part:

4

See

The official comment

This Rule does not prohibit communication with a party,
or an employee or agent of a party, concerning matters
outside the representation. For example the existence of
a controversy between a government agency and a private
party, or between two organizations, does not prohibit a
lawyer for either from communicating with nonlawyer
representatives of the other regarding a separate matter
. . . . This rule also covers any person, whether or not
a party to a formal proceeding, who is represented by
counsel concerning the matter in question.
W. Va. Rules of Prof’l Conduct R. 4.2 cmt. (1989) (emphasis added);
see also ABA Comm. of Ethics & Prof’l Responsibility, Formal Op.
95-396, at 1 (1995) (“The bar against contacts with represented
persons applies to all communications relating to the subject
matter of the representation except those that fall within the
narrow category of being ‘authorized by law.’”).
“The primary purpose of Rule 4.2 is to protect the attorneyclient relationship by preventing one party’s attorney from making
ex parte contact with another party.”

State ex rel. Charleston

Area Med. Ctr. v. Zakaib, 437 S.E.2d 759, 762 (W. Va. 1993).

The

prohibition against lawyers communicating directly with an opposing
party represented by counsel is based on a variety of rationales.
Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.
N.Y. 1990).

First, it prevents attorneys from exploiting lay

people who are unfamiliar with the law.

Id.

Second, it preserves

the integrity of the attorney-client relationship.

Id.

Third, it

helps prevent the inadvertent disclosure of privileged information.
Id.

Fourth, it facilitates settlement by involving attorneys in

the negotiation process.

Id.

In general, the “anti-contact” rule
5

is a “barrier against possible abuses by the opposing lawyer that
may harm the client’s interest or interfere with the lawyer-client
relationship.”

Roger C. Cramton, State Ethics Rules and Federal

Prosecutors: The Controversies Over the Anti-Contact and Subpoena
Rules, 53 U. Pitt. L. Rev. 291, 322 (1992).
III.

Discussion

In their brief regarding the client contact issue, the Peirce
Firm defendants present three main arguments: (1) CSX cannot
contact any clients whom the Peirce Firm has represented in claims
against CSX or third-party manufacturers, whether or not those
clients currently have pending third-party claims; (2) the Peirce
Firm has a right to know which clients CSX has contacted and has a
right to receive CSX’s notes from these client interviews; and (3)
an attorney from the Peirce Firm may represent Peirce Firm clients
if they are deposed by CSX.
In response, CSX argues: (1) because Rule 4.2 only applies to
currently represented persons, CSX should be free to contact the
Peirce Firm’s former clients; (2) CSX should be free to contact
individuals who are represented in third-party claims because those
claims constitute different matters than the client’s claim against
CSX and CSX’s claims against the Peirce Firm defendants in this
case;

and

representing

(3)
any

the
of

Peirce
its

Firm
current

depositions in this case.

6

should
or

be

former

prohibited
clients

from
during

In their reply, the Peirce Firm defendants contend that CSX
has not established that the Peirce Firm does not have obligations
under its attorney-client relationship with clients as to whom
formal proceedings against CSX have concluded.

The Peirce Firm

defendants further argue that the “matter” at issue for purposes of
Rule 4.2 is all asbestos-related claims, except for workers’
compensation claims. The Peirce Firm defendants emphasize that the
term “matter” is broadly defined and in this case, includes
communication regarding a client’s asbestos-related injury and
claim and his relationship with the Peirce Firm.

According to the

Peirce Firm defendants, these topics are off limits to CSX because
they are related to the subject of the representation.

This Court

will address each of these arguments in turn.
A.

Categories of Clients
Before delving into a discussion of the parties’ arguments,

this Court finds it necessary to first clarify the relationship
between the Peirce Firm and the various clients at issue in these
briefs.

The parties’ briefs reference four “categories” of Peirce

Firm clients: (1) clients with pending claims against CSX; (2)
clients with pending third-party claims;3 (3) former clients that
the Peirce Firm represented in asbestos-related claims against CSX;

3

The Peirce Firm defendants describe these third-party claims
as claims “against somebody other than the railroad. It would be
a manufacturer of asbestos products or the bankruptcy trust of
manufacturers of asbestos products.” Hr’g Tr. 13:1-5, May 1, 2009.
7

and

(4)

former

clients

that

the

Peirce

asbestos-related third-party claims.

Firm

represented

in

CSX acknowledges that it

cannot contact the first category of clients.
Scheduling Conference Tr. 22, Mar. 7, 2011.

See Status and
Thus, this Court

limits its focus to current Peirce firm clients with pending thirdparty claims and former Peirce Firm clients.
B.

Defining the “Subject of the Representation”
It is the Peirce Firm defendants’ position that Rule 4.2

prohibits CSX from contacting all clients that the Peirce Firm has
represented in claims against CSX or third-party manufacturers,
whether or not those clients currently have pending third-party
claims.

Citing to ABA Formal Opinion 95-396, the Peirce Firm

defendants state that because the “matter to be discussed” is the
client’s asbestos-related injury and facts related thereto, and
because the Peirce Firm represents the clients as to that subject
matter, all communications by CSX related to that subject matter
are prohibited.

ABA Comm. of Ethics & Prof’l Responsibility,

Formal Op. 95-396, at 1 (“This prohibition applies to the conduct
of lawyers in both civil and criminal matters, and covers any
person known to be represented by a lawyer with respect to the
matter to be discussed.”).

Regardless of whether or not they are

current matter clients or previous matter clients, the Peirce Firm
defendants assert that CSX cannot ethically contact them regarding
their asbestos-related injury.

8

CSX, however, argues that Rule 4.2 does not prohibit it from
communicating with formerly represented persons because the Peirce
Firm’s

representation

Specifically,

CSX

of

argues

those

that

the

persons

has

terminated.

Peirce

Firm’s

third-party

retainer restricts the scope of its representation to claims or
lawsuits against defendants or manufacturers of asbestos products
that the client identifies in writing.

Thus, when the client’s

claims against CSX and all previously identified third-parties were
resolved, the Peirce Firm’s representation of the client ended.
CSX further asserts that it should be free to communicate with
persons who are represented by the Peirce Firm in third-party
claims.

According to CSX, those third-party claims are separate

and distinct from the client’s claims against CSX and CSX’s claims
against the Peirce Firm defendants in this case.
After reviewing the briefs, this Court finds that the question
of whether CSX can contact present and former Peirce Firm clients
hinges upon the definition of the “subject of the representation.”
W. Va. Rules of Prof’l Conduct R. 4.2.

An analysis of the

application of Rule 4.2 in the criminal context provides some
insight as to whether it should prevent CSX from contacting certain
clients in this case.

In United States v. Moss, the court held

that the Florida “no contact” rule did not bar the Federal Bureau
of Investigation from communicating with other inmates concerning
crimes wholly unrelated to the crimes with which they had been

9

charged and for which they had secured legal counsel.

United

States v. Moss, No. 10-60264-CR-COHN, 2011 WL 2669159, at *7 (S.D.
Fla. Mar. 21, 2011).

The Moss court stated, “[i]f a person is

represented by counsel on a particular matter, that representation
does not bar communications on other, unrelated matters.”

Id.

In

People v. Santiago, the court similarly held that Rule 4.2 did not
prohibit prosecutors from communicating with the defendant, who had
been arrested for child endangerment, even though the attorney
appointed to represent the defendant in a separate child protection
case was not present during these interviews.
925 N.E.2d 1122, 1129 (Ill. 2010).

People v. Santiago,

The Santiago court notes that

“because the drafters of Rule 4.2 did not include the words
‘subject matter’ or ‘same or substantially related’ matter in the
rule, we presume that the omission was deliberate.”

Id. at 1130.

Many courts have also discussed the application of Rule 4.2 as
it

pertains

employees.

to

ex

parte

contact

with

unrepresented

former

In Polycast, the court held that attorneys for the

opposing party were not barred from having ex parte communications
with the former employee of the corporate litigant.

Polycast, 129

F.R.D. at 628; see also Breedlove v. Tele-Trip Co., Inc., No. 91 C
5702, 1992 WL 202147, at *1 (N.D. Ill. Aug. 14, 1992) (“Former
employees . . . cannot be construed as parties or agents of a
corporate party and, thus, are not within the scope of [Rule
4.2].”); Lang v. County of Maricopa, 826 P.2d 1228, 1233 (Ariz.

10

1992) (holding that Rule 4.2 does not bar counsel from having ex
parte contacts with a former employee of an opposing party where
the former employer is represented by counsel unless the acts or
omissions of the former employee gave rise to the underlying
litigation or the former employee has an ongoing relationship with
the former employer in connection with the litigation).

As the

Breedlove court stated, Rule 4.2 “is not intended to prevent a
party from discovering potentially prejudicial facts; rather, it is
intended to protect the attorney-client relationship of counsel
with a corporate client.”

Breedlove, 1992 WL 202147, at *1.

According to Rule 4.2, “the matter” to which the later part of
the rule refers is the matter in which the communicating lawyer is
“representing the client.”

See Santiago, 925 N.E.2d at 1129

(“[T]he phrases ‘the subject of the representation’ and ‘that
matter’

refer

back

to

the

representing a client.’”).

phrase

‘[d]uring

the

course

of

Thus, Rule 4.2 only applies when the

person with whom the lawyer seeks to communicate is represented in
the same matter as the matter in which the communicating lawyer is
representing

his

client.

In

this

case

the

subject

of

the

representation is CSX’s allegations of fraud against the Peirce
Firm defendants.

The third amended complaint sets forth a claim

that the Peirce Firm orchestrated a scheme to inundate CSX and
other entities with thousands of asbestos cases without regard to
their merit, in violation of the federal Racketeer Influenced and

11

Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq.
Third Am. Compl. ¶ 1-3.

In the third amended complaint, the

plaintiff also argues that the Peirce Firm defendants’ conduct
supports claims for common law fraud and conspiracy.

Id. at ¶ 3.

These fraud, conspiracy, and RICO claims are separate and distinct
matters from the Peirce Firm’s representation of a client in a
third-party asbestos claim, and they are separate and distinct from
a client’s Federal Employees Liability Act (“FELA”) claim against
CSX.

While this Court acknowledges that the clients’ claims

against

CSX

and/or

third-party

manufacturers

and

this

action

brought by CSX against the Peirce Firm defendants are similar in
the sense that they may involve the subject of a client’s asbestosrelated injury claim, they are different matters within the meaning
of Rule 4.2.

Matter of Mims v. Chichester, 281 A.D.2d 256, 257

(N.Y. App. 2001).
With regard to those Peirce Firm clients who have pending
third-party claims, it is clear that there is a difference between
the Peirce Firm’s involvement in its clients’ asbestos-related
cases and the Peirce Firm’s involvement in this fraud case. In the
asbestos-related cases, the “matter to be discussed” was the
client’s asbestos-related injury. In the current case, the “matter
to be discussed” is the alleged fraud.

ABA Comm. of Ethics &

Prof’l Responsibility, Formal Op. 95-396, at 1. Significantly, the
Power of Attorney Agreement executed by the Peirce Firm’s asbestos

12

clients does not establish an attorney-client relationship that
continues indefinitely with regard to all asbestos-related matters
in

general.

Instead,

the

Power

of

Attorney

Agreement

only

authorizes the Peirce Firm to represent the client “in a claim for
damages against asbestos manufacturers, suppliers, or any person,
firm or corporation liable resulting from my exposure to asbestos
products.”

Defs.’ Br. Ex. 1.

Moreover, the Power of Attorney

Agreement provides that the Peirce Firm is authorized to file a
claim or lawsuit “only against defendants and manufacturers of
asbestos products that I identify to my attorneys in writing as
products that I was exposed to.”

Id.

Significantly, at the

October 24, 2011 status and scheduling conference, counsel for the
Peirce Firm defendants was unable to state whether any of the
“currently pending matter clients” named in the third amended
complaint

have

current

third-party

claims

or

claims

awaiting

assertion that have been identified in writing pursuant to the
Power of Attorney Agreement.
2011.

Hr’g Tr. 15:7-25; 16:1-22, Oct. 24,

For these reasons, the Peirce Firm defendants cannot now

argue that the Power of Attorney Agreement covers claims of fraud
by CSX against the Peirce Firm defendants.
This Court agrees with the Peirce Firm defendants that the
term “matter” in Rule 4.2 is not meant to be case-specific.

“The

use of the words ‘subject’ and ‘matter,’ rather than ‘lawsuit,’
indicates that [Rule 4.2] applies to all transactions for which

13

lawyers are hired and cannot be construed to imply that its
application is limited to cases where suit is filed.” Iowa Supreme
Court Attorney Disciplinary Board v. Box, 715 N.W.2d 758, 763 (Iowa
2006). Although Rule 4.2 is broad enough to encompass a variety of
transactions, it is not so broad as to prevent communication
regarding all subjects that may happen to share the same underlying
facts as the “matter.”
Turning to former clients of the Peirce Firm, this Court finds
that CSX is free to communicate with clients whose relationship
with the Peirce Firm has terminated.

See Restatement (Third) of

the Law Governing Lawyers § 31(2) (2000) (“[A] lawyer’s actual
authority to represent a client ends when . . . the client
discharges the lawyer [or] the representation ends as provided for
by contract or because the lawyer has completed the contemplated
services.”).

Rule 4.2, which references a party known to be

represented by a lawyer, cannot be construed to bar communications
with a person who is no longer represented by counsel because his
claims

have

been

resolved.

In

this

case,

the

Peirce

Firm

defendants acknowledge that certain “Previous Matter Clients” do
not have current claims or claims awaiting assertion.
at 1.

Defs.’ Br.

Thus, because there is no ongoing representation of these

clients by the Peirce Firm, the Peirce Firm does not maintain an
attorney-client relationship with these clients.

As explained

above, Rule 4.2 is intended to prevent interference with the

14

attorney-client

relationship.

If

representation

has

been

terminated, however, Rule 4.2 is inapplicable. ABA Comm. of Ethics
& Prof’l Responsibility, Formal Op. 95-396, at 8-9 (“In the event
that such a termination has occurred, the communicating lawyer is
free to communicate with, and to respond to communications from,
the former represented person.
would

then

be

governed

Unrepresented Persons.”).

The communicating lawyer’s conduct

by

Rule

4.3,

Communications

with

While this Court agrees that the Peirce

Firm defendants owe certain duties to their former clients, the
Peirce Firm cannot require CSX to obtain its consent prior to
contacting former clients whose representation by the Peirce Firm
has terminated.
The Peirce Firm defendants also argue that even if a client
does not have a presently pending claim, the Peirce Firm continues
to have an attorney-client relationship with the client as to
asbestos-related claims because additional claims may be brought in
the future.

However, this Court finds that speculation as to

claims that may be filed in the future is insufficient to justify
the application of Rule 4.2.

Even if additional asbestos-related

claims are filed, these claims would be separate matters from the
matter that CSX seeks to discuss in this case, namely, the alleged
fraud of the Peirce Firm.

The Peirce Firm defendants cannot

properly claim to represent every former client as to every action
that could possibly be filed.

15

C.

Clients Already Contacted by CSX
In their brief, the Peirce Firm defendants argue that they

have a right to know which clients CSX has contacted and to receive
CSX’s notes from these client interviews.

According to the Peirce

Firm defendants, any communication by CSX with currently pending
matter clients or previous matter clients is a violation of Rule
4.2.

Because this Court finds that Rule 4.2 does not bar CSX from

communicating with certain Peirce Firm clients regarding CSX’s
allegations against the Peirce Firm defendants in this case, the
Peirce Firm defendants’ request must be denied. This Court has not
been

asked

to

decide

whether

these

names

and

notes

are

discoverable, or whether they constitute privileged work product.
Thus, this Court makes no ruling as to the discoverability of these
names and notes.
D.

Representation of Peirce Firm Clients at a Deposition
The Peirce Firm defendants also seek an order from this Court

permitting an attorney from the Peirce Firm who is not listed as a
defendant in this action to represent the firm’s clients in any
deposition properly noticed and taken by CSX in this litigation.
In support of this request, the Peirce Firm defendants argue that
no conflict of interest exists between Mr. Peirce and the Peirce
Firm clients.

The Peirce Firm defendants further argue that no

purported conflict of interest of Mr. Peirce can be imputed to the
other attorneys in the Peirce Firm.

16

Therefore, another attorney

you from the Peirce Firm may represent Peirce Firm clients if they
are deposed in this case.
In response, CSX contends that the Peirce Firm should be
prohibited from representing any of its current or former clients
in this case.

Citing to Rule 1.7(b) and Rule 1.10(a) of the West

Virginia Rules of Professional Conduct, CSX argues that a clear
conflict of interest exists in this case between Mr. Peirce and his
former clients and that this conflict is imputed to the entire
Peirce Firm.
Rule 1.7(b) of the West Virginia Rules of Professional Conduct
states, in pertinent part:
A lawyer shall not represent a client if the
representation of that client may be materially limited
by the lawyer’s responsibilities to another client or to
a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely affected;
and
(2) the client consents after consultation.
W. Va. Rules of Prof’l Conduct R. 1.7(b).

Rule 1.10(a) provides:

“While lawyers are associated in a firm, none of them shall
knowingly represent a client when anyone of them practicing alone
would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or
2.2.”
Peirce

W. Va. Rules of Prof’l Conduct R. 1.10.
Firm

defendants’

primary

goal

is

In this case, the
to

defend

allegations of racketeering, fraud, and conspiracy.

against

This goal is

inconsistent with the desire to protect their clients’ interests in
the asbestos-related claims. Thus, at least a risk exists that the
17

Peirce Firm defendants may use the representation of their clients
to protect their personal interests, in violation of Rule 1.7(b).
This Court agrees that Mr. Peirce’s personal interests as a
defendant in this case could conflict with the best interests of
his

former

clients.

Mr.

Peirce

has

a

personal

interest

in

defending any allegation of impropriety that occurred during the
course of his representation of his former clients, while his
former

clients

have

an

interest

in

appropriately

testifying

regarding all of the details of the pursuit of their asbestos
claims.

Therefore, this Court believes that with regard to the

subject issue, a conflict of interest exists between Mr. Peirce and
the former clients of the Peirce Firm.
It is for these same reasons that Mr. Peirce’s former clients
cannot be represented in this matter by another member of the
Peirce Firm.

Rule 1.10(a) creates a presumption that the conflict

of interest between Mr. Peirce and his former clients is imputed to
all other attorneys in the Peirce Firm.

This conflict is non-

waivable, and therefore, the entire Peirce Firm is disqualified on
the basis of the imputed conflict.

See W. Va. Rules of Prof’l

Conduct R. 1.10(d) (“A disqualification prescribed by [Rule 1.10]
may be waived by the affected client under the conditions stated in
Rule 1.7.”).

18

E.

Motion for Evidentiary Hearing and Motion to Strike
Because this opinion resolves the client contact issue raised

in the parties’ briefs, this Court finds that there is no need for
an evidentiary hearing. Therefore, CSX’s motion for an evidentiary
hearing and Peirce Firm defendants’ motion to strike can be denied
as moot.
IV.

Conclusion

For the reasons set forth above, the Peirce Firm defendants’
request for an order prohibiting CSX from contacting clients is
DENIED.4

However, CSX shall not contact persons who are currently

represented by the Peirce Firm in asbestos-related claims against
CSX or persons represented by counsel in this case.

Additionally,

the Peirce Firm defendants’ request for an order requiring CSX to
produce a list of clients whom CSX has contacted is DENIED; the
Peirce Firm defendants’ request for an order giving a Peirce Firm
attorney

permission

to

represent

Peirce

Firm

clients

during

depositions is DENIED; CSX’s motion for an evidentiary hearing (ECF
No. 836) is DENIED AS MOOT; and the Peirce Firm defendants’ motion
to strike (ECF No. 838) is DENIED AS MOOT.
IT IS SO ORDERED.

4

This Court assumes that should CSX contact Peirce Firm
clients with pending third-party claims or former Peirce Firm
clients, it will be clear that the communication relates to the
present case and the claims asserted in the third amended
complaint.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

November 9, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

20