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Court finds interview is not a violation of professional conduct rules

February 6, 2014

A federal magistrate in Hammond has ruled there were no violations of the Indiana Professional Rules of Conduct when defense counsel interviewed a potential witness in preparation for trial after discovery had closed.

Magistrate Judge Andrew P. Rodovich issued the ruling this week in Thomas N. Simstad and Marla K. Simstad v. Gerald Scheub, et al., 2:07-CV-407.

Thomas and Marla Simstad filed their lawsuit in 2007 against Gerald Scheub and other members of the Lake County Advisory Planning Commission, Northern Indiana Public Services Co., and other defendants, alleging the defendants conspired to, among other things, “extort from developers compliance with Scheub’s political agenda through the planning commission.”

The Simstads are real estate developers. The planning commission denied their petition for a subdivision development, which the couple says met all commission requirements. The lawsuit alleges the denial was in part to retaliate against the Simstads, who opposed Scheub’s political agenda and who spoke against Ned Kovachevich being appointed executive director of the commission.

During a deposition by the defense counsel of one of the plaintiffs’ experts in August, the expert mentioned the name of Charles Sawochka, who allegedly heard statements that one of the defendants made about the plaintiffs. Sawochka worked for the Simstads approximately 10 years ago. A paralegal from the counsel’s law firm contacted Sawochka to set up an interview. He was later interviewed in preparation for trial after discovery had closed, which the plaintiffs argue violated the Rules of Professional Conduct 4.1, 4.3, 4.4. and 9.1. They say the defense counsel and paralegal were vague in setting up the interview and didn’t identify which party the firm represented.

Sawochka in an affidavit said to the best of his recollection the firm’s representation of the defendants was not revealed during the interview. The paralegal stated she followed protocol and told Sawochka she represented the defendants.

“Although Sawochka now represents that he was confused, the evidence does not suggest that defense counsel knew or had reason to know that Sawochka did not understand their role, and therefore they did not violate Rule 4.3,” Radovich wrote.

The magistrate judge also rejected the claim the paralegal was working without supervision, noting that the plaintiffs haven’t shown that a paralegal cannot conduct a preliminary interview, that the interview equates to unsupervised legal work or that the paralegal was not supervised.

 

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