Railroad Loses To Hoey & Farina On Appeal

Alan J. Fisher, Attorney ** PROVIDING RESULTS YOU NEED AND DESERVE! **

Steven P. Garmisa

Hoey & Farina has reprinted below with permission a recent article from The Chicago Daily Law Bulletin. We share this with you for three reasons.

First, the victory marks a win for railroaders' right to use railroad union approved FELA Designated Legal Counsel.

Second, the article highlights the quality appellate work of Hoey & Farina. An appeal may be involved in the handling of Federal Employers' Liability Act litigation matter. Hoey & Farina's appellate work is headed by Steve Garmisa, the attorney on the winning side of the court case discussed below.

Third, at union meetings injured railroaders frequently tell us, "The railroad claim agent is going to take care of me." The question raised by the article is, "If the railroad won't take care of their head trial attorney, who was injured on the job, why would they take care of you?"

As FELA Designated Legal Counsel, Hoey & Farina is here to help and to provide legal service in any FELA matter. If you should have any questions, we encourage you to call us at 1-888-425-1212.


"Appeals panel puts law firm back on case"

By JOHN FLYNN ROONEY
Chicago Daily Law Bulletin
Law Bulletin staff writer

A Chicago law firm can represent a former-in-house counsel for Metra in her personal-injury case against the commuter railroad agency, a state appeals court ruled Friday.

A 1st District Appellate Court panel reversed a trial court's ruling disqualifying Hoey, Farina & Downes from representing Ellen K. Emery.

"We find no basis for applying a conclusive presumption that Emery (as a client) would disclose confidential Metra information to (Hoey, Farina) in prosecuting her own tort claim against her former employer," Justice Neil F. Hartigan wrote in the unpublished order under Illinois Supreme Court Rule 23.

Emery, the agency's former associate general counsel and director of litigation, retained name partner James L. Farina to represent her in a Federal Employer's Liability Act complaint against Metra. In July 1999, Emery tripped over a light socket in Metra's Chicago office and injured her knee, according to the complaint served upon Metra in January 2002.

Robert J. Drummond, a lawyer with the Hoey, Farina firm representing Emery and the firm on appeal, welcomed Friday's decision.

"This Appellate Court ruling vindicates the rights of in-house attorneys to counsel of their choice when suing their former employers for violations of federal law," Drummond said. "This ruling means lawyers like Jim Farina, who follow the rules of professional conduct, will not be disqualified in this situation."

In her job with the agency, Emery was responsible for supervising and/or defending Metra against all FELA claims lodged against Metra and its contract carriers. At the time, Hoey, Farina represented clients in 23 FELA cases that Emery was defending against or supervising, the decision said.

Metra's attorney, Michael M. Conway, a partner in Foley & Lardner's Chicago office, said he believed the appeals court misapprehended the issue.

"The issue which the court misapprehended (relates to) a lawyer retaining her opposing lawyer to represent her against her client," Conway said in a telephone interview. "We think that this (decision) raises important general issues about the relationship between lawyers and their clients."

Emery contends that she was fired by Metra on March 4, 2002, in retaliation for filing the suit against Metra. Emery has retained another attorney to represent her in employment and defamation claims against Metra that remain pending in U.S. District Court here.

In late March 2002, Metra filed a motion to disqualify Hoey, Farina from representing Emery citing the Illinois Rules of Professional Conduct, specifically Rule 1.9 (a) (1) and (a) (2). Rule 9.1 (a) (1) prohibits a lawyer who formerly represented a client in a matter from representing "another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client…."

Rule 9.1 (a) (2) also prohibits a lawyer from using "information relating to the representation to the disadvantage of the former client unless…such use in permitted by Rule 1.6 or …the information has become generally known."

Metra asserted that Emery's job with Metra, "included confidential and privileged matters relating to FELA cases filed against Metra by (Hoey, Farina)," Friday's decision said, quoting from Metra's pleadings. Metra also alleged that Emery divulged shared confidences.

Emery responded by filing affidavits to rebut the presumption of shared confidences. Emery's affidavit stated that she has not revealed, disclosed or divulged to Farina or his firm any shared confidences or secrets. Cook County Law Division Presiding Judge William D. Maddux granted Metra's motion to disqualify Hoey, Farina in Emery's case but denied the motion to disqualify the firm from representing clients in the other FELA cases.

"I think the circumstance requires that other representation be had, that the circumstance here is one which I think public policy would say it is not a good idea – with so many lawyers available, not a good idea to – for in this circumstance to retain representation by someone where the opportunity to use information through the disadvantage of the former client is possible," Maddux said, according to a portion of the trial transcript included in Friday's decision.

Maddux agreed with Metra's assertion that "there is an irrebuttable presumption that confidential information was disclosed. I do not by this ruling seem to want to indicate that I believe or give any credibility to any actual wrong done by anyone," the transcript continued.

Emery appealed, maintaining that Maddux erred in disqualifying Hoey Farina where Metra failed to establish an actual violation of the rules of professional conduct and where Emery's case against Metra is not substantially related to the cases she defended for Metra. The appeals court panel agreed with Emery's contentions.

Justices Calvin C. Campbell and Ellis E. Reid joined in the 15-page order. Ellen K. Emery and Hoey, Farina & Downes v. Northeast Illinois Regional Commuter Railroad Corp., doing business as Metra, No. 1-02-1852.

Emery now works at the Chicago firm of Ancel, Glink, Diamond, Bush, DiCianni & Rolek P.C.

Steve P. Garmisa, with the Hoey & Farina firm, also represents Emery on appeal. Garmisa is a regular columnist for the Chicago Daily Law Bulletin.

If you or a loved one have suffered a work injury or wrongful death on the railroad, call an experienced FELA lawyer / railroad injury attorney at Hoey & Farina at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

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