Happy New Year!
I didn’t blog over the final few weeks of 2022. With the calendar having turned, it’s time to get back at it. Today, I’ll ease back into things with a post that relates to a story I shared a few months ago.
The weekend after Thanksgiving, Attorney Conlon went to Radio City Music Hall with her daughter’s Girl Scouts troop. They planned to attend the Rockettes’ Christmas Spectacular. Despite having a ticket, staff forced Attorney Conlon to leave after identifying her via facial recognition software.
Because of the law firm where she works.
Attorney Conlon’s firm is involved in litigation against a restaurant that is controlled by Madison Square Garden Entertainment (MSG). Like the restaurant, Radio City Music Hall is an MSG venue. In a statement issued to NBC4, a spokesperson for MSG said:
- “MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including (Attorney Conlon’s firm), which was notified twice.”
Attorney Conlon told NBC4 that she is not involved with her firm’s cases against MSG. Referring to a case in which another firm sued after being informed that it would be denied entrance to events at MSG venue, Conlon added that she thought a judge had ruled that MSG could not bar entry to people, like her, who had valid tickets.
Since the 1970s, Attorney Hutcher has had season tickets to New York Knicks games. The Knicks play at Madison Square Garden.
Attorney Hutcher is lead counsel for a group of ticket resellers who, in September, sued MSG. Once the suit was filed, MSG banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties. Among other things, MSG cited New York’s version of ABA Model Rule 4.2 as a basis for the ban. The ABA Journal reported that MSG released the following statement:
- “It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery. That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”
On behalf of his firm, Hutcher asked a court to enjoin MSG from prohibiting the firm’s lawyers from attending events at MSG properties.
In his complaint, Hutcher argued that:
“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”
He went on:
“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”
In November, a court issued this opinion. Here’s how the court resolved the 4.2 issue:
- “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”
To my knowledge, nothing like what has happened to Attorney Conlon and Attorney Hutcher has happened in Vermont. To think that it might strikes me as somewhat preposterous.
V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation. The first sentence of Comment  to Vermont’s rule states that
- “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”
I don’t interpret V.R.Pr.C. 4.2 as authorizing a grocery chain’s law firm to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores. Nor do I interpret the rule to authorize a lawyer for the hospital to ban me from visiting a sick relative merely because I’m representing a client who is suing the hospital.
For all I know, such bans might be valid under other law. And I am not suggesting that lawyers should undermine the discovery rules, make themselves witnesses, or do anything that violates V.R.Pr.C. 4.2 or V.R.Pr.C. 4.4(a).
However, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate V.R.Pr.C. 4.2 by going shopping, going to a game or concert, or visiting a sick relative.
As always, let’s be careful out there.
- Update on the no-contact rule and represented organizations
- The no-contact rule, represented organizations, and . . . basketball?
- ABA Opinion concludes that the no-contact rule applies to a self-represented lawyer. Should we amend Vermont’s rule?
- Virginia opinion concludes that lawyer who copies client on email to opposing counsel consents to “reply-all.”
 Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.
 Hutcher appears correct. As of today, the Knicks are tied for 7th in the NBA’s Eastern Conference, 6.5 games behind the Boston Celtics, owners of 17 NBA championships and the league’s best record so far this season.
 Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory. While the court concluded that New York law requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, it also determined that the same law does not apply to sporting events and, further, that MSG can revoke tickets at will until the moment they are presented.
 I don’t know much law.