In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1563

Shane Weibrecht,

Plaintiff-Appellant,

v.

Southern Illinois Transfer, Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-CV-235-GPM--G. Patrick Murphy, Chief Judge.


Argued October 23, 2000--Decided February 27, 2001



  Before Posner, Diane P. Wood, and Williams, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Contacts between
lawyers and "represented parties" raise some of
the thornier issues in the area of legal ethics.
This case turns on one variant of the problem:
whether a provision of the Federal Employers’
Liability Act (FELA), 45 U.S.C. sec.sec. 51-60,
overrides an ethical rule adopted by the federal
district court that prohibits attorneys from
contacting parties represented by other counsel
under the circumstances presented here. The
district court concluded that the lawyer in
question had violated the ethical rule, that the
FELA provided no excuse, and that the situation
was so egregious as to call for outright
dismissal of the client’s case. We agree with
everything but the last point, and thus we remand
for further proceedings on the remedy.

I

  Kenneth Weibrecht was a deckhand for Southern
Illinois Transfer. On the morning of February 16,
1998, Kenneth and another Southern Illinois
Transfer employee, Mike Bader, were in the
process of attaching a barge to a tug. Bader was
the pilot of the tug and was in charge of the
operation; Kenneth’s job was to disconnect the
barge from another vessel so that it could be
attached to the tug. During the operation,
Kenneth somehow slipped into the water and
drowned. No other Southern Illinois Transfer
employees were present during the operation.
After his father’s death, Shane Weibrecht brought
this suit under the Jones Act, 46 U.S.C. App.
sec. 688, which incorporates the FELA for the
purposes relevant to this case. In it he alleged
that Southern Illinois Transfer was negligent in
not having more deckhands involved in the
operation, in not requiring Kenneth to wear a
life preserver, and in not maintaining the safety
and seaworthiness of the barge Kenneth was
working on.

  From the start, the case was plagued by more
than its share of missteps. Initially, the
plaintiff in the suit was Marilyn Weibrecht,
Kenneth’s wife, who had opened a probate estate
proceeding in Illinois with herself as
representative. Problems arose when it turned out
that Shane had already done the same thing in
Missouri (naming himself as representative)
before Marilyn had acted. The district court
concluded not only that Marilyn was not
authorized to sue as a representative of her
husband, but also that certain statements in
Marilyn’s Illinois probate application were
"misstatement[s], approaching fraud." Despite its
misgivings, and perhaps giving Shane and
Marilyn’s "innocent mistake" explanation the
benefit of the doubt, the court dismissed the
case without prejudice and permitted the
Weibrechts to refile substituting Shane as the
plaintiff. They did so, and the case proceeded to
discovery, where additional problems arose. At
one point, the defendants sought and were awarded
a $300 sanction for the plaintiff’s failure to
respond to requests for information and
interrogatories.

  Against this backdrop, the parties scheduled
Bader’s deposition for December 16, 1999. On
December 14, Shane personally contacted Bader and
discussed with him the Weibrechts’ theory that
there should have been at least two deckhands on
the barge at the time of the accident. Shane also
told Bader that the lawsuit was his mother’s
doing and that the purpose of the lawsuit was not
to recover money but to make Southern Illinois
Transfer a safer place to work. Shane then
suggested that Bader should contact the
Weibrechts’ attorney, Michael McGlynn. The
district court found (over McGlynn’s
protestations to the contrary) that Shane made
this call to Bader at McGlynn’s suggestion. In
any event, it is undisputed that on the next day,
McGlynn called the Bader residence, asked to
speak to Bader, and left a message asking Bader
to call him. McGlynn insists the only purpose of
his call was to make sure Bader was aware that
the time of the deposition had been changed.

  On December 22, Southern Illinois Transfer filed
a motion for sanctions based on the two calls to
Bader, claiming that they violated Rule 4.2 of
the district court’s rules of professional
conduct (based on the Illinois rule of the same
number), which governs contacts between attorneys
and parties represented by another lawyer and in
general prohibits such contacts without the
consent of the other lawyer. Inexplicably,
McGlynn did not see the motion until the court
mentioned it at a pretrial conference on January
24. McGlynn admitted that he was "caught off
guard" at the pretrial conference and was unable
to provide the district court with any case
citations to back up his arguments that his
conduct was permissible. Nevertheless, McGlynn
argued that in Jones Act cases, the FELA
specifically permits a plaintiff’s lawyer to
contact the defendant’s employees and that this
provision overrides any ethical prohibition on
such contact. In the alternative, McGlynn argued
that, as he understood the relevant ethical
rules, Bader was not a sufficiently high-level
manager at Southern Illinois Transfer to be
considered represented by Southern Illinois
Transfer’s lawyer. McGlynn requested additional
time to flesh out these arguments, but the
district court, noting that McGlynn’s office
apparently had received the motion over a month
before the hearing, declined his request for
additional time, found that he had violated the
rule, and dismissed the case with prejudice.
McGlynn subsequently filed Rule 59(e) and Rule 60
motions in which he fleshed out his argument for
why his conduct did not amount to an ethical
breach, but the district court declined to amend
the judgment or reopen the case.

II
A. Interaction Between Ethical Rules and the
FELA

   The Southern District of Illinois has adopted
Illinois’s ethical rules as its own rules of
professional conduct, see Southern District of
Illinois Local Rule 83.4(d)(2), relying on both
its power to enact local rules under Fed. R. Civ.
P. 83 and its "inherent power and responsibility
to supervise the conduct of attorneys admitted to
practice before it." Local Rule 83.4, para. 1.
The text of the rule McGlynn allegedly violated
was therefore identical to its Illinois
counterpart, Illinois Rule of Professional
Conduct 4.2, which provides:

During the course of representing a client a
lawyer shall not communicate or cause another to
communicate on the subject of the representation
with a party the lawyer knows to be represented
by another lawyer in that matter unless the first
lawyer has obtained the prior consent of the
lawyer representing such other party or as may
otherwise be authorized by law.

(We refer to this as S.D. Ill. Rule 4.2 where the
federal character of the rule is important;
otherwise, where we are referring to all state or
federal rules with the same text, we refer to it
simply as Rule 4.2.) Despite the identity of
language between the Illinois rule and the
federal local rule, there is still a distinction
between the two, even if it is a fine one. See,
e.g., United States v. Kimbell Foods, Inc., 440
U.S. 715, 728-30 (1979); Wilson v. Garcia, 471
U.S. 261, 266-67 (1985). (This is not an instance
where a federal court must decide whether federal
preemption principles implicitly require a
federal rule, but a rule whose content mirrors
state law; we have the easier case where the
federal authority has explicitly adopted the
state law.) The consequences for federal-state
comity of a decision pertaining to one or the
other are quite different, for example. Once the
federal court adopts the text of the state rules,
it has its own professional responsibility
standards, and any interpretation it may wish to
give the rules is not binding in any sense on the
Illinois courts. More importantly for this case,
because we are dealing with a potential conflict
between a federal local rule and a federal
statute, rather than a state rule and a federal
statute, the parties’ focus on whether the local
rule is "preempted" by the FELA is misplaced.
Rather, the appropriate question is whether the
federal statute supercedes the local rule.
Although the concepts of preemption and
supercession are closely related, they are
distinct doctrines. See United States v. Klubock,
832 F.2d 649, 651 (1st Cir. 1987). Whether the
federal statute supercedes the local rule is a
question of federal statutory interpretation
which we review de novo. Dell v. Board of
Education, Township High School District 113, 32
F.3d 1053, 1058 (7th Cir. 1994).

  With this correction to the governing analysis
in place, we turn to the question whether
McGlynn’s attempt to contact Bader violated S.D.
Ill. Rule 4.2. McGlynn concedes that at first
blush the rule appears to prohibit what he did,
but he argues that Rule 4.2 for this purpose is
superseded by sec. 60 of the FELA, which, by
virtue of the Jones Act, 46 U.S.C. App. sec. 688,
governs suits by maritime workers for employment-
related injuries. See O’Donnell v. Great Lakes
Dredge & Dock Co., 318 U.S. 36, 38-39 (1943).
Section 60 provides:
Any contract, rule, regulation, or device
whatsoever, the purpose, intent, or effect of
which shall be to prevent employees of any common
carrier from furnishing voluntarily information
to a person in interest as to the facts incident
to the injury or death of any employee, shall be
void . . . .

45 U.S.C. sec. 60.

According to McGlynn, S.D. Ill. Rule 4.2 is
exactly the kind of "rule, regulation, or device"
that sec. 60 is talking about, because it might
have the effect of preventing maritime employees
from voluntarily furnishing relevant information
to a Jones Act plaintiff’s attorney. Because the
plaintiff’s attorney is a "person in interest"
under sec. 60, see, e.g., Sheet Metal Workers
Int’l Assoc. v. Burlington Northern R.R. Co., 736
F.2d 1250, 1252 (8th Cir. 1984), McGlynn argues
that S.D. Ill. Rule 4.2 necessarily conflicts
with sec. 60 and must yield to the latter
statute.

  If we agreed with McGlynn that there is a
square conflict between sec. 60 and S.D. Ill.
Rule 4.2, then we would also agree that sec. 60
would take precedence. Federal district courts
are authorized to promulgate local rules under
both Fed. R. Civ. P. 83 and a federal statute, 28
U.S.C. sec. 2071. Both of these sources state
that local rules must be "consistent with Acts of
Congress." To the extent a local rule conflicts
with a federal statute, this requirement is
violated, and so the local rule must be held
invalid. See Frazier v. Heebe, 482 U.S. 641, 646
(1987); Stern v. United States District Court for
the District of Massachusetts, 214 F.3d 4, 13
(1st Cir. 2000).

  We acknowledge that the federal and state
courts that have considered the issue are split
on the question whether sec. 60 takes precedence
over district court rules such as S.D. Ill. Rule
4.2 as well as on the closely related question
whether sec. 60 preempts similar state ethical
rules. (Implicitly, these courts are also split
on the question whether there is a conflict
between sec. 60 and Rule 4.2, as there would be
no need to consider which takes precedence if
they could be reconciled. See Merrill Lynch,
Pierce, Fenner, & Smith, Inc. v. Ware, 414 U.S.
117, 126-27 (1973)). Compare, e.g., Mayfield v.
Soo Line R.R., No. 95 C 2394, 1995 WL 715865
(N.D. Ill. Dec. 4, 1995) (unpublished), United
Transportation Union Local Unions 385 and 77 v.
Metro-North Commuter R.R. Co., No. 94 Civ. 2979
(RWS), 1995 WL 634906 (S.D.N.Y. Oct. 30, 1995)
(unpublished), Blasena v. Consolidated Rail
Corp., 898 F. Supp. 282 (D.N.J. 1995), and Harper
v. Missouri Pacific R.R. Co., 636 N.E.2d 1192
(Ill. App. Ct. 1994) (holding sec. 60 overrides
Rule 4.2), with White v. Illinois Central R.R.
Co., 162 F.R.D. 118 (S.D. Miss. 1995), Branham v.
Norfolk and Western Railway Co., 151 F.R.D. 67
(S.D.W. Va. 1993), and State ex rel. Atchison,
Topeka & Sante Fe R.R. v. O’Malley, 888 S.W.2d
760 (Mo. Ct. App. 1994) (holding no conflict).
Courts on both sides of the debate have cited the
legislative history of sec. 60: those that find
sec. 60 overrides Rule 4.2 argue that sec. 60 was
intended broadly to afford plaintiffs the same
access to information that their employers have,
see, e.g., Blasena, 898 F. Supp. at 284, while
those that find no conflict have held that the
legislative history shows that Congress was
concerned only with the behavior of the railroads
themselves, and did not intend to affect external
limitations on contact with the employees, such
as attorney ethical rules, see, e.g., Branham,
151 F.R.D. at 70-71 & n.18.

  With respect, we cannot agree with those who
think that an irreconcilable conflict exists
between sec. 60 and Rule 4.2. Section 60 forbids
rules or devices that prevent employees from
furnishing information to a plaintiff or the
plaintiff’s lawyer, but nothing in sec. 60
necessarily requires that the plaintiff’s lawyer
be allowed to gather information outside the
presence of the employee’s attorney. As we
discuss further in a moment, not all employees
are considered to be represented by a company’s
lawyers under Rule 4.2. If the employee is not
represented, then the plaintiff’s attorney would
be free to contact that employee. If the employee
is represented, however, under Rule 4.2 the
plaintiff’s attorney would be required to go
through the employee’s lawyer (who is most likely
the company’s lawyer) to schedule a deposition or
otherwise gain information from the employee.
Although this requirement might raise the cost of
gathering information from the employee, we
cannot say that such a requirement amounts to a
rule or device that prevents the employee from
furnishing information to the plaintiff’s
attorney.

  Moreover, if we read the word "prevent" in sec.
60 to include the marginal deterrence imposed by
Rule 4.2, we would effectively be finding that
the FELA and the Jones Act were intended to
displace generally applicable ethical rules. We
see no evidence of such a radical move in either
the text or the background of the statutes. At
the time sec. 60 was enacted in 1939, the
attorney ethical rule against contacting
represented parties was an ingrained part of the
legal system. See, e.g., ABA Canons of
Professional Ethics, Canon 9 (1908). Had Congress
wanted sec. 60 to override such a long-standing
rule of legal ethics, it easily could have said
explicitly that it was doing so. That it did not
suggests that in enacting sec. 60 Congress was
concerned specifically with rules, regulations,
or devices concocted by the railroads to stifle
employees’ contacts with potential FELA
claimants, and not with altering long-standing
norms of litigation. We will not take silence in
this instance as the equivalent of an intent to
give sec. 60 such a broad scope that it would
preempt the state equivalents to Rule 4.2 and it
would supersede federal rules like the one in the
Southern District of Illinois.

  McGlynn is not willing to concede that his case
stands or falls on the broad supersession
argument. If S.D. Ill. Rule 4.2 governs his fate,
he argues in the alternative that he is excused
because of an exception in the rule itself that
allows communications between attorneys and
represented parties if those communications are
"otherwise . . . authorized by law." Section 60
creates just such an exception, in his view.
Whether he is right, and sec. 60 authorizes ex
parte communications between a FELA plaintiff’s
lawyer and the defendant’s employees, is another
question of federal statutory interpretation,
which once again receives plenary review. Dell,
32 F.3d at 1058.

  Although McGlynn’s argument that sec. 60 creates
an exception to Rule 4.2 has a certain appeal, in
the end it too stretches the statute too far.
Quite simply, the exception in Rule 4.2 is for
communications "authorized by law," and sec. 60,
by its terms, does not authorize anything.
Rather, sec. 60 is a prohibition on certain
conduct by railroads and maritime employers:
these employers are forbidden from enacting rules
or regulations that prevent employees from
disclosing information to FELA or Jones Act
plaintiffs. The phrase "rule, regulation, or
device" in sec. 60, read in context, appears to
refer only to internal rules or regulations
promulgated by employers. Even if it could have
a broader application to other prohibitory rules
(perhaps because of the word "whatsoever" that
appears in the text), there is still nothing to
suggest that it was designed to authorize conduct
that would otherwise violate general ethical
rules. We therefore reject McGlynn’s alternate
argument based on sec. 60.

B. Definition of "Represented Party" under Rule
4.2

  Taking a different tack, McGlynn next argues
that no matter what sec. 60 does or does not
mean, S.D. Ill. Rule 4.2 was not violated in this
case because Bader was not a "party represented
by another lawyer" as contemplated by the rule.
Some version of the ethical rule prohibiting
contact with represented parties is in force in
every U.S. jurisdiction, see generally
Restatement (Third) of the Law Governing Lawyers
sec. 158, cmt. b (1998), and the question of how
the rule should apply to employees of a corporate
party has been a subject of vigorous debate, with
different authorities advocating interpretations
ranging from a complete ban on any contact with
the opponent’s employees, to a restrictive
interpretation allowing contact with all but the
most senior managers, to a variety of functional
tests that focus on the employee’s role in the
events giving rise to the lawsuit. See generally
Restatement (Third) of the Law Governing Lawyers
sec. 159 reporter’s note; Ernest F. Lidge III,
The Ethics of Communicating wtih an
Organization’s Employees, 45 Ark. L. Rev. 801
(1993) (analyzing various approaches). Prior to
this case, the Southern District of Illinois had
not determined which of the competing
interpretations of the rule it would adopt. We
afford district courts considerable discretion in
interpreting and applying their own local rules,
and we will disturb an interpretation only if we
are convinced that the district court has
misconstrued the rule or has perverted the
meaning of the words of the rule. See
Congregation of the Passion, Holy Cross Province
v. Touche, Ross & Co., 854 F.2d 219, 223 (7th
Cir. 1988).

  In analyzing the scope of Rule 4.2, the
district court adopted the three-part test that
the ABA set out in its official commentary to the
Model Rules. See ABA Model Rules of Professional
Conduct Rule 4.2, cmt. 4 (1995). The district
court also relied heavily on a recent decision
from the Northern District of Illinois, in which
that court adopted and explained the ABA test.
See Orlowski v. Dominick’s Finer Foods, Inc., 937
F. Supp. 723 (N.D. Ill. 1996). Under the test set
out in the Model Rules and Orlowski, a
defendant’s employee is considered to be
represented by the defendant’s lawyer, and so is
covered by the prohibition in Rule 4.2, if the
employee meets any one of the following three
criteria: (1) she has "managerial responsibility"
in the defendant’s organization, (2) her acts or
omissions can be imputed to the organization for
purposes of civil or criminal liability, or (3)
her statements constitute admissions by the
organization. See ABA Model Rule 4.2, cmt. 4; see
also Orlowski, 937 F. Supp. at 728. Applying this
test, the district court found that Bader was
represented by Southern Illinois Transfer’s
lawyers for the purposes of Rule 4.2.
  McGlynn argues that the district court erred in
applying the ABA’s test rather than a much more
restrictive test that the Illinois Court of
Appeals approved in a 1984 decision. See Fair
Automotive Repair, Inc. v. Car-X Service Systems,
Inc., 471 N.E.2d 554 (Ill. App. Ct. 1984). In
Fair Automotive, the Illinois Appellate Court
held that Illinois Rule 4.2 applies only to those
members of a corporate defendant’s "control
group" who have "the responsibility of making
final decisions and those employees whose
advisory roles to top management are such that a
decision would not normally be made without those
persons’ advice." Id. at 560. Under this test, it
is clear that Bader, a mere tugboat pilot who as
far as the record discloses had no input into the
business decisions of Southern Illinois Transfer,
would not have been considered a represented
party under Rule 4.2. Nonetheless, the district
court considered the Fair Automotive test in its
order denying Shane’s Rule 60(b) motion and
concluded that, because Fair Automotive was
decided under a prior version of the Illinois
Rules, it is not clear that the Illinois courts
would still apply the control group test. In any
event, the district court was construing its own
local rule, and even though in this case the
district court has incorporated Illinois’s rules
by reference, nothing compelled the district
court to adopt the same interpretation of those
rules that has been adopted by an intermediate
Illinois court. (We see no indication in the
materials accompanying the professional conduct
rules of the Southern District of Illinois that
the district court intended to bind itself to
follow the Illinois Supreme Court’s
interpretations of the Illinois rules, much less
to follow decisions from other Illinois courts.)
The district court was within its discretion in
choosing to follow the ABA test rather than the
control group test, and we will not disturb that
decision.

  We must therefore uphold the district court’s
finding that Bader was a represented party under
Rule 4.2 unless we find that the district court
abused its discretion in applying the ABA test to
the facts of this case. See Congregation of the
Passion, 854 F.2d at 223. The district court
found that Bader would be considered a
represented party under all three parts of the
ABA test. Although we have our doubts as to
whether Bader had managerial responsibility
sufficient to satisfy the first alternative, we
find that he easily satisfied the second and
third alternatives, which ask whether his acts or
omissions could be imputed to Southern Illinois
Transfer and whether his statements about the
incident could constitute admissions by the
corporation.
   The district court found that Bader, as pilot
of a Southern Illinois Transfer tug, had
managerial responsibility for purposes of S. D.
Ill. Rule 4.2, relying primarily on two cases in
which this court has held that the highest-
ranking officer on a ship is a manager for
purposes of the NLRA. The most recent case,
Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719
(7th Cir. 2000), is inapposite: the officers in
question there supervised 150-200 employees on
ships that at times had as many as 2,000
passengers; clearly, those officers had much
greater supervisory authority than Bader did on
his tug. Bernhardt Bros. Tugboat Serv. v. NLRB,
328 F.2d 757 (7th Cir. 1964), while more helpful,
still does not carry the day. Bernhardt Bros.
upheld the Board’s determination that tugboat
pilots who "had authority responsible to direct
the crew on their watch" and who had at least
some input into the hiring and firing of crew
members were managers. Id. at 758. Bernhardt
Bros. did not purport to make this ruling as a
matter of law, however. In all these cases it is
necessary to evaluate the specific facts to
determine whether the person holds a management
position. Compare Orlowski, 937 F. Supp. at 729
(warning that "not all employees with supervisory
or manager-type positions, or titles, fall into
the category of ’managerial’ employees").

  When the facts in this case are examined, it
seems very unlikely that Bader had "management
responsibility." Although the district court
found from the record that Bader typically
supervised 2 to 3 deckhands, it does not appear
that he had any authority to hire or fire the
deckhands or to assign work to them; rather, the
type of discretion he exercised over the
deckhands was "not that of the supervisor but
that exercised by the more experienced employee
over one who is less skilled." Southern Illinois
Sand Co., 137 NLRB 1490, 1492 (1962) (holding tug
pilot was not a manager). If Bader had
supervisory authority at all, it seems his role
was akin to that of a foreman, which is not
generally considered a management position.
Finally, Bader was a member of a collective
bargaining unit, which is strong evidence that
Southern Illinois Transfer did not consider him
to be a manager.

  Even if the district court abused its
discretion in determining that Bader had
managerial responsibility, however, the error
makes no difference, because the district court
was surely correct to find that Bader was a
represented party under the other two parts of
the ABA test. Under the second part of the ABA
test, an employee is considered to be represented
by the corporation’s lawyer if the employee’s
acts or omissions in the matter at issue can be
imputed to the corporation. See ABA Model Rule
4.2, cmt. 4. In this case, Shane is trying to
show, among other things, that Southern Illinois
Transfer was negligent in failing to require
Kenneth to wear a life preserver while working
and in allowing the work to be performed despite
the fact that there were too few deckhands
available. Bader was responsible for overseeing
the work that was being done on the barge on the
day Kenneth died, and it is likely that Bader’s
decisions about whether to require life
preservers and whether the work could be done by
only two employees would be imputed to Southern
Illinois Transfer.

  Similarly, the third part of the ABA test holds
that an employee is a represented party if the
employee’s statements about the relevant matters
could constitute admissions on the part of the
corporate party. See ABA Model Rule 4.2, cmt. 4.
Bader’s statements about whether the work on his
tug was being performed in a safe manner on the
day Kenneth died would most likely be considered
admissions by Southern Illinois Transfer on this
subject, once again bringing Bader within the
scope of those who are considered to be
"represented" under the rule. See Fed. R. Evid.
801(d)(2)(D) (defining "admission by party-
opponent" to include "a statement by the party’s
agent or servant concerning a matter within the
scope of the agency or employment, made during
the existence of the relationship"). We cannot
say that the district court abused its discretion
in determining that Rule 4.2, as the court
interpreted it, applied to Bader on the facts of
this case.

III

  For all these reasons, we agree with the
district court that McGlynn’s conduct in
attempting to contact Bader on the evening before
his deposition violated S.D. Ill. Rule 4.2.
Nevertheless, we are concerned that the district
court’s decision to dismiss the case with
prejudice may have been too harsh a response to
what appears to have been an honest but misguided
attempt to comply with the ethical rules.
Although we review a district court’s choice of
sanction only for abuse of discretion, see
Barnhill v. United States, 11 F.3d 1360, 1367
(7th Cir. 1993), we have also observed that a
sanction of dismissal with prejudice "should
usually be employed only in extreme situations,
when there is a clear record of delay or
contumacious conduct, or when other less drastic
sanctions have proven unavailing." Id. We are
unable to say on the record before us that those
criteria were met in this case.
  At the time McGlynn made his call to the Bader
household, neither this court nor the Southern
District of Illinois had resolved the apparent
conflict between sec. 60 of the FELA and Rule of
Professional Conduct 4.2. The courts that had
considered the issue were almost evenly split,
and the only two courts from Illinois to have
considered the issue had held that sec. 60
preempted Illinois Rule 4.2. See Mayfield v. Soo
Line R.R., No. 95 C 2394, 1995 WL 715865 (N.D.
Ill. Dec. 4, 1995) (unpublished); Harper v.
Missouri Pacific R.R. Co., 636 N.E.2d 1192 (Ill.
App. Ct. 1994). McGlynn thus could have concluded
in good faith that sec. 60 either displaced S.D.
Ill. Rule 4.2 or authorized his conduct.
Similarly, there was legitimate uncertainty about
the way the rule applied to employees of
corporate parties at the time McGlynn acted.
McGlynn reasonably could have believed that Bader
would not be considered a party for purposes of
S.D. Ill. Rule 4.2. In those circumstances, a
dismissal with prejudice based solely on
McGlynn’s attempt to contact Bader would have
been an abuse of discretion.

  It is not clear, however, how central a role
McGlynn’s violation of Rule 4.2 played in the
district court’s choice of sanction. It appears
to have been the primary factor, but the court
also referred generally to other reasons for the
dismissal in its various rulings. We are unable
to determine from the record before us what role,
if any, these other considerations played in the
district court’s choice of sanction. Most
significantly, the defendant has alleged not only
that McGlynn improperly attempted to contact
Bader, but also that both McGlynn and Shane
improperly attempted to influence Bader’s
deposition testimony. Of course, if Shane or
McGlynn (or both) attempted to influence a
witness’s testimony, rather than merely to
interview Bader to learn what information he had
about the accident, that conduct would be a
serious infraction that could have warranted a
dismissal with prejudice. But the district court
never made any factual findings about this
allegation, which makes it impossible for us to
tell on the basis of the record before us whether
any such thing happened. On remand, the district
court should conduct additional proceedings to
determine precisely what transpired during
Shane’s conversations with Bader.

  In addition, the district court noted that
McGlynn and Shane had made a number of errors
earlier in the litigation, including initially
filing the case with the wrong plaintiff and
failing to respond in time to discovery requests.
The district court may have relied on the
cumulative effect of these errors, in conjunction
with the Rule 4.2 violation, in determining that
a dismissal with prejudice was warranted.
Although these errors in themselves do not seem
to be the kind of "clear record of delay or
contumacious conduct" that would warrant a
dismissal with prejudice, the district court is
of course free to consider the entire history of
the case in assessing the appropriate sanction on
remand.

  For the foregoing reasons, the judgment of the
district court is Reversed and Remanded for further
proceedings consistent with this opinion. Circuit
Rule 36 will apply on remand.
