State Bar of Arizona Ethics Opinions

95-07: Communication with Represented Party; Communication with Corporate Employees
11/1995

The ethical propriety of communicating with current or former employees of opposing party will depend upon (1) whether the acts, omissions or statements of the employee may be imputed to the employer; and (2) whether the employee is represented by counsel.  [ER 4.2]

FACTS[1]

 

An attorney desires to interview witnesses who are (1) current and (2) former employees of an opposing party in litigation under the following circumstances:

 

(a) where the testimony may be detrimental to the employer;

 

(b) where the employee may have witnessed an unlawful act of the employer or its

agent; and

 

(c)  where the employee's situation is similar to that described by the plaintiff.

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.

 

Relevant Prior Ethics Opinions

 

Op. 87-25 (December 30, 1987)

Op. 89-05 (May 17, 1989)

ABA Op. 95-396 (July 28, 1995)

 

Opinion

 

This opinion will address in turn communications with a witness who is first a current employee, and then a witness who is a former employee, of an adverse party represented by counsel, with respect to each of the three enumerated circumstances, in the absence of consent by the adverse party employer's counsel.

 

ER 4.2 permits communications with consent or when "authorized by law to do so".  A properly issued subpoena and notice of deposition presumably constitutes authorization by law.  This opinion assumes that the "interviews" sought to be conducted will not be pursuant to any lawfully issued subpoenas.  This opinion is limited to the question of communications with non-governmental employees and former employees, and with respect to matters that are the subject of potential or pending civil litigation.  Communications with respect to pending or potential criminal or civil enforcement by a government authority are beyond the scope of this opinion.

 

The American Bar Association Committee on Ethics and Professional Responsibility issued Formal Opinion 95-396, Communications With Represented Persons, on July 28, 1995.  Although Opinion 95-396 does not bear directly on the questions presented to this Committee and addressed in this Opinion, it is consistent with this Opinion (except to the extent that the Arizona Court of Appeals limited communications with former employees in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992), see infra. at p. 4) and the ABA Opinion provides an otherwise comprehensive analysis of the rule; the reader therefore is referred to it for general guidance.

 

I.  Current Employee

 

     A.  Witness's testimony may be detrimental to the employer

  

That the testimony of the employee may be detrimental to her employer is not determinative.  The Comment to ER 4.2 states as follows:

 

            In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.[2]

 

If the employee does have managerial responsibility with the employer, ER 4.2 prohibits communication by a lawyer for the party adverse to the employer with such employee without the employer's lawyer's consent.  On the other hand, such communication with a non-managerial employee is not so proscribed, unless an act or omission of the non-managerial employee may be imputed to the employer for purposes of civil or criminal liability, or the statement of such non-managerial employee may constitute an admission on the part of the employer.

 

The Comment to ER 4.2 goes on to state:

 

            If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule.

 

Thus, counsel for a party wishing to communicate with a non-managerial employee of an adverse party should ascertain from the employee (or beforehand if possible) whether or not she is represented in connection with the matter that is the subject of the proposed communication, and if so, obtain the consent of the employee's counsel.  Often, the employer has offered to provide the employee with her own counsel, who may have been engaged at the time of the communication by counsel for the party adverse to the employer, or the employer's own counsel also represents the employee.

 

     B.  Employee may have witnessed an unlawful act by the employer

 

That the employee may have witnessed an unlawful act of his employer or representative is not relevant to whether communication by counsel for a party adverse to the employer is permitted under ER 4.2.  Whether or not such communication is permissible under ER 4.2 is governed by the commentary to the rule as set out in section I.A. above.

 

     C.  Employee's situation is similar to that described by the plaintiff 

 

That employee may be in a situation similar to that described by the plaintiff in the lawsuit also is not relevant to whether or not communication by counsel for a party adverse to the employer is permitted under ER 4.2.  Whether or not such communication is permissible under ER 4.2 is governed by the commentary to the rule as set out in section I.A. above.

 

II.  Former Employee

 

     A.  Witness's testimony may be detrimental to the employer

 

That the testimony of the former employee may be detrimental to her former employer is not determinative.  The Arizona Court of Appeals held in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992) that communication with a former employee by counsel for a party adverse to the former employer is permissible in the absence of consent by counsel for the employer, unless the acts or omissions of the former employee gave rise to the underlying litigation.  In the language of the Comment to ER 4.2, communication is prohibited if "an act or omission [of the former employee] . . . may be imputed to the organization for purposes of civil or criminal liability . . . ."  The court also held in Lang that communication was prohibited without the consent of the former employer's counsel if the former employee has some ongoing relationship with the employer in connection with the litigation.

 

     B.  Employee may have witnessed an unlawful act of his former employer

 

That the former employee may have witnessed an unlawful act by his former employer or representative is not relevant to whether communication by counsel for a party adverse to the former employer is permitted under ER 4.2.  Whether or not communication with a former employee is permitted under such circumstances is governed by the same analysis set out in section II.A. above.

 

     C.  Employee's situation is similar to that described by the plaintiff

 

That the former employee's situation may be similar to that described by the plaintiff is not relevant to whether or not communication by counsel for a party adverse to the former employer is permitted under ER 4.2.  Whether or not communication with a former employee is permitted under such circumstances is governed by the same analysis set out in section II.A. above.



[1]Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  ã State Bar of Arizona 1995

[2]Arizona Revised Statutes § 12-2234 recently broadened the scope of the attorney-client privilege, overturning the decision in Samaritan Foundation v. Superior Court In and For County of Maricopa, 176 Ariz. 497, 862 P.2d 870 (1992).  Communications between an attorney for a corporation, governmental entity, partnership, business, association or other similar entity or an employer and an employee regarding acts or omissions of or information obtained from the employee shall now be considered privileged under the conditions specific in the statute, and an attorney, without the consent of his client, "shall not . . . be examined as to any communication made by the client to him".  A.R.S. § 12-2234.A.  This opinion does not purport to interpret this statute because, among other reasons, it is beyond the jurisdiction of the Committee to express opinions of law.

 

It is the opinion of the Committee, however, that the statute does not change the meaning of ER 4.2.  Although communications between an attorney for the employer and any current employee will be regarded as privileged under the statute, and the employer's lawyer will not be required to reveal communications with employees, the statute's broadening the scope of the privilege has not broadened the scope of the representation; the lawyer acting on behalf of the corporation or employer is still only the lawyer for the corporation or employer.  The mere act of communicating with the employee does not mean that the lawyer has become the lawyer for the employee.  Only if the lawyer has been retained by the employee, or the employee has consented to the lawyer's representation of her, will the lawyer be considered the lawyer for the employee.  It is only at such time as the lawyer begins to represent the employee that the proscriptions of ER 4.2 become operable.  (Of course, as noted in the text, depending on the position or responsibility of the employee, ER 4.2 may apply irrespective of whether such employee is explicitly represented by either separate or the employer's counsel.)