A lawyer may interview ex parte a client's employee concerning litigation with the employee's former employer, subject to the limits recognized in Lang v. Superior Court
, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). In interviewing an employee in these circumstances, the lawyer must also comply with other applicable ethical rules in addition to ER 4.2, particularly ERs 4.3 and 4.4. [ERs 4.2, 4.3, 4.4]
The inquiring attorney represents a client in defending litigation for alleged breach of contract. The client now employs a person who formerly worked for the opposing party while the contract was in effect. The attorney proposes to interview his client's employee, who is also the opposing party's former employee, on matters relevant to the litigation. Counsel for the opposing party has asserted a right to attend any such interview.
May an attorney conduct an ex parte interview of a client's employee regarding that person's previous employment by an opposing party?
RELEVANT ETHICAL RULES
ER 4.2. Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
ER 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
ER 4.4. Respect for Rights of Third Persons
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
RELEVANT ARIZONA ETHICS OPINION
Ariz. Op. 95-07
ER 4.2 generally prohibits ex parte contacts with a party known to be represented by counsel. With respect to organizations, the comment following ER 4.2 states that the rule prohibits ex parte communications with three groups of individuals: 1) those having a managerial responsibility on behalf of the organization; 2) any person whose act or omission in connection with the matter may be imputed to the organization; and 3) any person whose statement may constitute an admission on the part of the organization. Because categories 1 and 3 contemplate some current connection with the organization, those categories do not encompass former employees. Lang v. Superior Court, 170 Ariz. 602, 605, 826 P.2d 1228, 1231 (App. 1992). Cf. Ariz. R. Evid. 801(d)(2)(D) (providing that admissions by party-opponent include statements made by servant while employed concerning matters within scope of employment). Category 2, however, may include some former employees.
Arizona's ethical rules allow ex parte contacts with the former employees of an opposing party except in particular circumstances identified in Lang. There, the Court of Appeals held:
[C]ounsel may have ex parte contact with a former employee of an opposing
party who is represented by counsel without violating ER 4.2 unless the acts
or omissions of the former employee gave rise to the underlying litigation or
the former employee has an ongoing relationship with the former employer in connection with the litigation.
170 Ariz. at 608-09, 826 P.2d at 1234-35 (emphasis added).
Contacts with a former employee are not prohibited merely because that person may have information which is harmful to the opposing party; nor does the fact that a former employee may be a prospective witness, even a critical one, trigger the prohibition. Id. at 606, 826 P.2d at 1232. See also Ariz. Op. 95-07 (noting fact that testimony of former employee may be detrimental to former employer does not determine propriety of contact).
The analysis in Lang also governs the situation where the former employee is now employed by the client of the lawyer who proposes to interview the employee. Arizona's ethical rules do not generally prohibit ex parte interviews of such employees. But the fact that the party opposing the former employer has hired the latter's erstwhile employee does not authorize ex parte contacts that otherwise would be prohibited by Lang. The inquiry suggests that the former employee is not separately represented. Of course, if the employee is separately represented by counsel in the matter, ER 4.2 bars ex parte contacts, absent the consent of the employee's counsel. Moreover, where a lawyer seeks to interview a client's employee regarding litigation with that person's former employer, the lawyer must also take care to comply with all other ethical rules, particularly the requirements of ER 4.3 for dealings with unrepresented persons and ER 4.4 concerning respect for the rights of third parties.
Lang and the applicable ethical rules suggest the following guidelines:
- A lawyer is not generally prohibited from conducting an ex parte interview of a client's employee concerning litigation against that person's former employer.
- ER 4.2 will apply to an interview of the client's employee if that person's conduct while formerly employed gave rise to the litigation or if the person has an ongoing relationship with the former employer in connection with the litigation.
- If ER 4.2 applies, an ex parte interview generally will not be permitted without the consent of counsel representing the former employer. If, however, the former employee is separately represented in the matter by his or her own counsel, consent by that counsel will suffice for ER 4.2 and an interview may occur without the presence or consent of the former employer's lawyer. See ER 4.2, Comment. Cf. Ariz. Op. 95-07 (observing that if employee has counsel, that lawyer's consent should be obtained for communications with current, non-managerial employee of adverse party).
- If an ex parte interview occurs, to ensure compliance with ERs 4.3 and 4.4, the lawyer for the current employer must inform the employee of the lawyer's role in the case, the identity of the lawyer's client, and the fact that the employee's former employer is an adverse party. See Ariz. Op. 96-02 (noting disclosures required by lawyer in making ex parte contacts with general members of homeowners' association). See also Shearson Lehman Bros. v. Wasatch Bank, 139 F.R.D. 412, 416-18 (D. Utah 1991) (attorney contacting former employees must comply with ERs 4.3 and 4.4); Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156, 1162-63 (Fla. Ct. App. 1995) (same).
In any interview with the employee, the lawyer for the current employer must avoid inquiring into any privileged communications between the employee and counsel for his former employer. See, e.g., PPG Industries v. BASF Corp., 134 F.R.D. 118, 123-24 (W.D. Pa. 1990) (noting where current employee formerly worked for adverse party, the counsel for current employer could not inquire into privileged communications with counsel for former employer); Reynoso, 659 So.2d at 1162-63 (cautioning that counsel should not seek to induce employee to breach any privileged communications); Strawser v. Exxon Co. U.S.A., 843 P.2d 613, 622 (Wyo. 1992) (same); ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 91-359 (same).