United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISQUALIFY COUNSEL AND
MOTION FOR PROTECTIVE ORDER
A. BOLDEN UNITED STATES DISTRICT JUDGE
October 24, 2018, eight days before the parties' deadline
to submit a joint trial memorandum, Yale University
(“Defendant” or “Yale”) moved to
disqualify the counsel of William Metcalf
(“Plaintiff”) for alleged violations of
Connecticut Rule of Professional Conduct 4.2. See
Motion to Disqualify, dated Oct. 24, 2018 (“Disqual.
Mot.”), ECF No. 98. Yale also moved for a protective
order. See Motion for Protective Order, dated Oct.
24, 2018 (“Mot. for Prot. Ord.”), ECF No. 99.
following reasons, the motion to disqualify counsel is
DENIED, without prejudice to renewal, and
the motion for a protective order is DENIED
as moot, without prejudice to renewal.
FACTUAL AND PROCEDURAL BACKGROUND
Metcalf, a former Curator of Coins and Medals at the Yale
University Art Gallery, alleges that Yale discriminatorily
terminated him due to his age in violation of the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623 et seq., and the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen.
Stat. § 46a-60 et seq. See Amended Complaint,
dated Mar. 22, 2016 (“Am. Compl.”), ECF No. 27,
¶¶ 28-41. Specifically, Mr. Metcalf alleges that
Jock Reynolds, the Director of the Yale University Art
Gallery, “summarily terminated his employment as
Curator” on August 29, 2014. Id. ¶¶
Yale's motion to disqualify, Yale alleges that Ethan
Levin-Epstein, Esq., one of Mr. Metcalf's attorneys,
telephoned Classics Professor Kirk Freudenburg on August 30,
2018. Memorandum of Law in Support of Disqual. Mot., dated
Oct. 24, 2018 (“Yale Mem.”), ECF No. 99-1, at 2.
During his employment with Yale, Mr. Metcalf was also
appointed as an Adjunct Professor in the Classics Department.
Id. at 1-2; Am. Compl. ¶ 1. Yale alleges that
Professor Freudenburg served as Mr. Metcalf's supervisor
with respect to his role in the Classics Department, and that
he participated in Mr. Metcalf's termination from that
department. Yale Mem. at 2.
alleges that, after Mr. Levin-Epstein reached Professor
Freudenburg, Mr. Levin-Epstein interviewed Professor
Freudenburg for thirty-four minutes about the case.
Id. Mr. Levin-Epstein's paralegal, Deborah
French, was also allegedly on the call and “undoubtedly
taking notes.” Id. Yale claims that Professor
Freudenburg did not appreciate the significance of the
situation, did not take notes, and did not call Yale's
counsel right away; thus, Yale's counsel only learned of
the interview from Professor Freudenburg a month and a half
later. Id. at 2-3.
argues that Professor Freudenburg is properly considered a
represented party under Connecticut Rule of Professional
Conduct 4.2 (“Rule 4.2”). Id. at 4-5.
Yale argues that where an organization is a party, three
classes of employees are also considered parties: “(1)
any employee having managerial responsibility; (2) any
employee whose act or omission may be imputed to the employer
for purposes of liability; and (3) any employee whose
statement may constitute an admission on the part of the
employer.” Id. at 5 (citing Official
Commentary to Rule 4.2). Yale alleges that, during the
interview, Mr. Levin-Epstein “inappropriately obtained
confidential information of a party in direct
violation” of Rule 4.2. Id. at 2.
support of its motion, Yale submitted an affidavit from
Professor Freudenburg, who provides this account of the call:
On August 30, 2018 I received a telephone call from Attorney
Ethan Levin-Epstein who identified himself as Mr.
Metcalf's lawyer and stated he wished to ask me some
questions. He mentioned that an assistant by the name of Ms.
French was on the phone with him. I responded that I was busy
and did not have time, but he persisted, telling me that he
just had “a few questions.” He immediately began
questioning me about the termination of Mr. Metcalf and the
extent of my involvement in it. The conversation lasted 34
minutes, based on the information on my cell phone. At no
time did Attorney Levin-Epstein suggest that I call
Yale's lawyers to determine whether I should participate
in this interview. I had not been involved in a lawsuit
before and it did not occur to me during the interview that I
needed to consult with Yale's lawyers before answering
of Kirk Freudenburg, dated Oct. 23, 2018, ECF No. 100, ¶
Metcalf does not dispute that this interview occurred.
See Plaintiff's Memorandum of Law in Opposition
to Disqual Mot. and Mot. for Prot. Order, dated Nov. 9, 2018
(“Pl.'s Opp.”), ECF No. 105, at 1.
Metcalf claims that counsel telephoned Professor Freudenburg
“in anticipation of calling him as a witness” at
trial, and to “confirm Freudenburg's [previous]
testimony at the grievance hearing.” Pl.'s Opp. at
6. Mr. Metcalf argues that Professor Freudenburg was not
involved in Yale's decision to terminate:
Contrary to Yale's representations, Freudenburg's
only involvement with Metcalf's employment in Classics
was to try to extend it as long as possible, not to terminate
it . . . . rather than being involved in the decision to
terminate Metcalf, Freudenburg actually tried to help Metcalf
as much as he could, ensuring that he would get paid and
receive benefits through 2014. Freudenburg's effort to
keep Metcalf “as is” in the Classics Department
as long as possible was then approved by Yale HR. The
document Yale offered as evidence of Freudenburg being
“involved in the termination process” is
evidence, in reality, of exactly the opposite. Far from
participating in the termination decision, Freudenburg tried
to ease Metcalf's departure from Classics. That departure
was inevitable, though, because Classics simply lacked the
financial resources to pay Metcalf past the end of the year.
Id. at 4-5. Mr. Metcalf further notes that in
interrogatory responses, Yale never previously identified
Professor Freudenbrug as a person with material knowledge of
the reasons for the termination or as a decision-maker ...