United States District Court, E.D. Pennsylvania
Regina Raub brought this action seeking damages for injuries
allegedly sustained during a U.S. Airways flight as a result
of unexpected turbulence. See Pl.'s Memo in Opp.
to Def.'s Mot. for Sanctions at 6 (Document No. 55, filed
Aug. 11, 2017). Presently before the Court is defendant U.S.
Airways' Motion for Sanctions for Plaintiff's
Counsel's Violations of Rules of Professional Conduct 4.1
and 4.2. (“Motion for Sanctions”). For the
reasons that follow, the motion is denied.
filed an Amended Complaint on October 25, 2016, for injuries
sustained during U.S. Airways Flight 815 travelling from
Cancun, Mexico, to Philadelphia, Pennsylvania, when the
flight encountered unexpected turbulence, asserting that U.S.
Airways is liable under the Montreal
Convention. First Am. Compl. (Document No. 19).
Plaintiff alleges that U.S. Airways owed passengers a duty to
ensure their safety during the flight, which included a duty
to inspect aircraft equipment and seatbelts and to avoid
areas of high turbulence. See Id. ¶¶
41-51. In that complaint, plaintiff also asserted claims
against the United States of America, through the Federal
Aviation Administration (“FAA”), for negligence
based on alleged failure to detect and warn U.S. Airways of
the turbulence. See First Am. Compl. at ¶
28, 2017, U.S. Airways filed the pending Motion for
Sanctions, alleging that plaintiff's attorney, Alisa
Brodkowitz, engaged in ex parte communications with
two U.S. Airways flight attendants in violation of
Pennsylvania Rule of Professional Conduct 4.2, which
prohibits a lawyer from communicating “about the
subject matter of the representation with a person the lawyer
knows to be represented by another lawyer in the
matter” without prior authorization. Pa. R.P.C. 4.2.
U.S. Airways further alleges that, during the course of these
communications, Brodkowitz made misleading statements in
violation of Pennsylvania Rule of Professional Conduct 4.1,
which provides that a lawyer shall not knowingly “make
a false statement of material fact or law to a third
person.” Pa. R.P.C. 4.1.
motion, U.S. Airways asked the Court to: (1) revoke
Brodkowitz's pro hac vice admission; (2) require
Brodkowitz to produce any information obtained during her
communications with the flight attendants; (3) prohibit the
use of any information or evidence obtained during her
communications with the flight attendants at trial; and (4)
require plaintiff's counsel to reimburse U.S. Airways for
reasonable attorneys' fees and expenses incurred in
connection with its motion. See Mot. for Sanctions
October 18, 2017, U.S. Airways stipulated to liability in
this case. Stipulation Regarding Defs.' Election Not to
Contest Liability (Document No. 67). As a consequence of the
stipulation, U.S. Airways now seeks as a sanction only
revocation of Brodkowitz's pro hac vice
United States District Court for the Eastern District of
Pennsylvania has adopted and enforces Pennsylvania's
Rules of Professional Conduct. Belote v. Maritrans
Operating Partners, L.P., 97-CV-3993, 1998 WL 136523, at
*1782 (E.D. Pa. Mar. 20, 1998); E.D. Pa. Local R. 83.6
have “inherent authority to impose sanctions
upon those who would abuse the judicial process.”
Republic of the Philippines v. Westinghouse Elec.,
43 F.3d 65, 73 (3d Cir. 1994) (emphasis in original) (citing
Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)).
“Because of their very potency, inherent powers must be
exercised with restraint and discretion.”
Chambers, 501 U.S. at 44. In imposing sanctions, the
United States Court of Appeals for the Third Circuit requires
that district courts tailor the sanction to appropriately
address the harm identified. Republic of the
Philippines, 43 F.3d at 74. First, the court must
examine the conduct at issue and explain why a sanction is
warranted. See Id. (directing courts to consider
patterns of wrongdoing; the severity of the infraction; and
the level of harm or prejudice to the adversary). Next, the
court must consider the range of available sanctions and
explain why the particular sanction chosen is appropriate.
attorney from one state who is regularly admitted and
licensed to practice therein may be “admitted to a
particular jurisdiction . . . for the purpose of conducting a
particular case.” Gsell v. Rubin and Yates,
LLC, 41 F.Supp.3d 443, 445 n.3 (E.D. Pa. 2014) (quoting
Black's Law Dictionary (9th ed. 2009)).
“[T]he rights and duties of an outside lawyer, once so
admitted, appear to be the same as those of a local
lawyer.” Cooper v. Hutchinson, 184 F.2d 119,
123 (3d Cir. 1950). Accordingly, a violation of disciplinary
standards applicable to members of the bar may justify
revocation of pro hac vice admission. Eagan by
Keith v. Jackson, 855 F.Supp. 765, 791 (E.D. Pa. 1994)
(citing Johnson v. Trueblood, 629 F.2d 302, 304 (3d
court determines that revocation of pro hac vice
admission is an appropriate sanction, counsel must be
provided with “notice of the conduct placing his or her
pro hac vice status at risk, notice of the standard
the . . . court will apply in deciding whether to revoke that
status, an opportunity to respond, and written reasons for
any revocation.” Eagan by Keith v. Jackson, 855
F.Supp. at 791 (citing Taberer v. Armstrong World
Indus., Inc., 954 F.2d 888, 910 (3d Cir. 1992)).
“While it is indeed true that admission pro hac
vice is a privilege, not a right, revocation of that
privilege, once bestowed, sends a strong message which works
a lasting hardship on an attorney's reputation.”
Mruz v. Caring, Inc., 166 F.Supp.2d 61, 70 (D.N.J.
2001) (citation omitted). Accordingly, disqualification is an
“ ‘extreme sanction' that should not be
imposed lightly.” Regional Employers' Assur.
Leagues Voluntary Employees' Beneficiary Ass'n Trust
v. Castellano, No. 03-CV-6903, 2009 WL 1911671, at *2
(E.D. Pa. July 1, 2009) (quoting Shade v. Great Lakes
Dredge & Dock Co., 72 F.Supp.2d 518, 520 (E.D. Pa.
prevail on a motion to disqualify counsel, the movant bears
the burden of establishing that a particular sanction is
warranted. Marino v. Usher, No. 11-CV-6811, 2014 WL
2116114, at *6 (E.D. Pa. 2014). In deciding a motion for
disqualification, “the court must consider the
client's right to be represented by the counsel of his
choice, as well as the opposing party's right to prepare
and try its case without prejudice.” See University
Patents, Inc. v. Kligman,737 F.Supp. 325, 329 (E.D.
Pa.1990) (citing Plunto v. Wallenstein, No.