State Bar of Arizona Ethics Opinions

89-05: Opposing Party and Counsel; Communication with Person Represented by Counsel
5/1989

Committee Deadlocked; Two alternative opinions were issued. In Opinion A., the divided committee concluded that is not improper for a lawyer or his/her agent to interview a former employee of a co-defendant without first obtaining the consent of the codefendant's counsel. In Opinion B., the committee opined that ex parte contact with a former employee is prohibited if the acts or omissions of the former employee, while employed, may be imputed to the employer for purposes of establishing liability; the contact may be improper if the former employee has had communications with the former employee's counsel that are protected by the attorney/client privilege. Both committee conclusions would not differ if the co-defendant had obtained from the plaintiff a covenant not to execute in order to shield it from exposure to the plaintiff.



FACTS

The inquiring attorney represents one of several defendants in pending litigation and is involved in extensive discovery. He would like to have an investigator interview some of the ex-employees and/or ex-officers of one or more of the other co-defendant corporations; all of the defendant corporations are represented by counsel. The investigator would ask those persons interviewed about the particular co-defendant'sgeneral operations, the proficiency of the company's personnel, and the former employee/officer's knowledge of certain events and/or transactions bearing upon the issues involved in the pending litigation.

The other defendants have entered into settlement agreements with the plaintiff, pursuant to which they obtained covenants not to execute on any judgment entered against them. However, the co-defendants are still parties to the litigation, and one is actively prosecuting a cross-claim against the inquiring attorney's client.

QUESTIONS

1. When is it ethically permissible for a lawyer to make an ex parte contact with an ex-employee of a co-defendant?

2. Would the answer be different if the co-defendant has obtained from the plaintiff a covenant not to execute and, therefore, faces no further exposure to the plaintiff?

ETHICAL RULES INVOLVED

ER 1.6.           Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation,...

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ER 3.4.           Fairness to Opposing Party and Counsel

A lawyer shall not:

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(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

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.

Comment to ER 4.2:

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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....

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OPINION

The committee is deadlocked on the issue presented by this inquiry. As a result, no definitive opinion can be rendered. The opposing viewpoints are presented below so that members of the Bar will have the reasoning of the opposing views available to them should they be faced with the issue. Because of the deadlock, it may be appropriate for this committee or a member of the Bar to invoke Rule 28 of the Rules of the Supreme Court for the purpose of having the Arizona Supreme Court clarify ER 4.2 and the Comment associated therewith.

A.        Alternative Opinion A

1.         Discussion

ER 4.2 acts as an absolute bar to direct contact between a lawyer and another party who is represented by another lawyer in the matter absent consent by the other lawyer or authorization by law. Indeed, where the inquiring lawyer knows that the opposing party is represented by an attorney but he or she is unclear about the area of that representation, he or she is best advised to check with that lawyer before commencing the communication. See In Re Schwabe, 408 P.2d 922 (Ore. 1965) (attorney reprimanded for contacting party directly to determine if he was in fact represented by another attorney who had not notified him of such representation); State v. Yatman, 320 So. 2d 401 (Fla. App. 1975) (prosecutor's attempt to interview defendant for purpose of filing separate case based on same criminal episode found to be ethically improper); Abeles v. State Bar, 9 Cal. 3d 603, 510 P. 2d 719, 108 Cal. Rptr. 359 (1973) (attorney could not communicate with party without consent of counsel of record, even where client denied being represented personally by counsel of record). It should be noted that the prohibition extends to all parties who are represented by another lawyer in the matter, regardless of whether they are "opposing" parties.

However, prior Arizona ethics opinions as well as opinions rendered by the ethics committees of the American Bar Association and other bar organizations generally hold that the scope of ER 4.2 and its parallel in the Model Code of Professional Responsibility, DR 7-104(A)(1), is not a blanket prohibition of communications with present employees of adverse parties. The boundaries have been drawn based upon the following factors: (1) whether the employee is in a managerial position with the entity or organization and has authority to commit or bind the entity or organization with respect to the subject litigation; and (2) whether the employee is so identified with a party by reason of his or her authority to speak for the party. Arizona Ethics Opinion No. 84-15 (October 31, 1984).

In our Opinion No. 57 (January 18, 1960), this committee adopted ABA Formal Opinion 117 (1934), in which it was held permissible for an attorney to interview clerks employed by an adverse party, provided no deception was practiced in obtaining the statements of the clerks and that the clerks were informed that the person interviewing them was the attorney for the claimant. “It should be borne in mind that [former] Canon 9 does not forbid interviews with employees of the opposite party.” Opinion No. 57 at 2.

The holding in Opinion No. 57 was reaffirmed in Opinions Nos. 61 (March 23, 1960), 203 (September 23, 1966), 219 (February 27, 1967) and 84-15 (October 31, 1984). In Opinion No. 203, the committee concluded that the plaintiff's lawyer could properly interview current employees of the defendant municipality concerning the facts before or after action is pending, but added that the attorney must “conscientiously further determine, if it be the fact, that he has no such right to contact employees of a municipality who hold positions wherein they have authority to speak for and bind the municipality.”

In Opinion No. 219, the committee held that, so long as the attorney's motives and purposes in interviewing employees of a party (a hospital) were not violative of any of the canons of ethics (i.e., solicitation of business, etc.), it was not unethical for the attorney to question hospital employees. Finally, in Opinion No. 84-15, the committee determined that interviews with present employees were permissible under the following guidelines: The inquiring attorney must inform the employees that he is an attorney and that he represents a client against their employer; he must also avoid any suggestion "calculated to induce the employee to suppress or deviate from the truth, or in any degree to affect his free conduct when appearing at the trial or on the witness stand."

Clearly, this committee has found exceptions to the applicable ethical considerations which govern when present employees may be interviewed by adverse counsel. Accordingly, if there are exceptions where present employees may be interviewed, it does not follow -- contrary to the view of Alternative Opinion B -- that ER 4.2 imposes an absolute and unqualified ban on contacts with former employees who no longer have any affiliation with the entity involved.

Alternative Opinion B asserts that the Comment to ER 4.2 suggests that any person capable of imputing liability to a party is within the contemplation of ER 4.2 and, therefore, ethically cannot be contacted. (Alternative Opinion B, infra at 14). This Comment, however, must be read to prohibit communications only where the act or omission of the individual at the time of the proposed communication may be imputed to the party. Thus, because the acts or omissions of persons not employed by the party at the time of the proposed communication could not be imputed to the party, the prohibition of ER 4.2 does not apply to former employees. To the extent that the Comment to ER 4.2 is read to prohibit communications without this temporal restriction, the Comment goes beyond the scope of ER 4.2 itself and violates the policy underlying that Ethical Rule.

The jurisdictions that have specifically addressed this issue hold that a former employee cannot bind the organization as a matter of law and, therefore, is outside the scope of ER 4.2. For instance, in Colorado Ethics Opinion No. 69 (Rev.) (June 20, 1987) (ABA/BNA Lawyers' Manual on Professional Conduct, Current Reports, Vol. 3, No. 16, Sept. 2, 1987, at pp. 281-282), it was specifically held that an attorney may interview former employees ex parte with regard to all matters except as to communications which are the subject of the attorney-client privilege. The Colorado committee distinguished between employees of an organization who constitute "parties," and mere “bystander” witnesses. Bystander witnesses were defined as all current employees who did not fall within the category of managerial employees with authority to commit the organization to a position regarding the subject matter of representation. Moreover, that committee noted that not all current managerial employees are protected unless such employee's acts, omissions or statements regarding the subject of representation would bind the organization.

The Colorado committee further determined that the distinction between bystander and non-bystander (party) witnesses did not apply to an organization's former employees. The committee stated:

After leaving the organization's employ, a former employee cannot bind the organization as a matter of law. (Citations omitted.) As a former employee is thus not the “party,” i.e., the organization, an attorney does not violate DR 7-104(A) (1) by communicating directly with the organization's former employee about the substantive dispute without the prior consent of the organization's counsel. (Citations omitted.) However ...DR 7-104(A) (1) is designed in part to preserve the confidentiality of privileged attorney-client communications. Accordingly, the inquiring attorney may not, while communicating with the organization's former employee, inquire into privileged attorney-client communications; nor may the inquiring attorney listen while the former employee attempts to divulge privileged communications voluntarily. Any privilege existing between the former employee and the organization's counsel belongs to the organization, and can be waived only by the organization (Citation omitted.)

Maryland Opinion 83-4 (9/10/82)/83-81 (5/23/83) (ABA/BNA Lawyers' Manual, supra, pp. 801:4323, 801:4332) reached the same conclusion, stating that “since their employment with the corporation has been severed, [former employees] can in no way be held to bind the corporation or communicate information that can be used to bind their former employer.” The Maryland committee noted that the primary concept reflected in DR 7-104(A)(1) is a party's right to have effective representation of counsel. In order for a corporate party's counsel to effectively represent his client, the attorney must have control over the information that flows from certain employees of the corporation. The committee, however, opined that effective representation of a corporate client would not encompass the ability to exercise control over information possessed by former employees. The Massachusetts Bar Association committee similarly concluded that DR 7-104(A) (1) applies only to present, not former, employees of a corporation because "former employees enjoy no present agency relationship that is being served by the representation of corporate counsel." Formal Opinion 82-7 (June 23, 1982) (ABA/BNA Lawyers' Manual, supra, pp. 801:4605-4606). As ensuring the effective representation of counsel is the basis for the rule, there can thus be no reason to bar communications with former employees.

In Opinion 88-14 (March 7, 1989) (ABA/BNA Lawyers' Manual, supra, CL··rent Reports, Vol. 5, No. 6, April 12, 1989, pp. 101-102), the Florida Bar Professional Ethics Committee agreed with the view of the Colorado Ethics Committee and specifically noted that the language of the comment to Florida's Rule 4-4.2 (which is the same in all relevant respects as ER 4.2 ) was not intended to apply to former managers or employees. The committee further noted that, in conducting any ex parte interviews of former employees of a non-client corporate party, the lawyer should not inquire into any matters within the corporation's attorney-client privilege. It is the view of the subscribers to Alternative Opinion A that the fear of a potential breach of the attorney-client privilege does not justify the restrictions that the advocates of Alternative Opinion B would place on the fact-finding process.

The Virginia Ethics Committee, in its Opinion 533 (December 16, 1983) (ABA/BNA Lawyers' Manual, supra, p. 801:8818), held that a lawyer may communicate directly with former officers, directors, or employees of an adversary corporation on the subject of pending litigation unless the lawyer has reason to know that such witnesses are represented by counsel. Similarly, Wisconsin Ethics Opinion E-82-10 (Dec. 1982) (ABA/BNA Lawyers' Manual, supra, p. 801:9017), concluded that the former managing agent of a corporation, who was an employee at the time when certain material acts were performed which could form a partial basis for liability, could be contacted by counsel for an opposing party. The committee opined that, if the former managing officer has "severed all relationship with the corporation in question, and has no longer any capacity whatsoever to commit the corporation, so that such former employee would not be a party by implication," then contact is ethically permissible. The committee added that the inquiring attorney should apprise the former employee that he or she may have a continuing duty to the corporation not to reveal any confidential information which he or she may have acquired during the course of his or her employment.

The New York City Bar committee stated in its Opinion 80-46 (ABA/BNA Lawyers' Manual, supra, pp. 801:6311-6312):

An important measure of whether the employee should be treated as a "party" is whether the employee has the power to commit the corporation since the corporation's right to representation would be undermined if those employees with the power to commit the corporation in a particular situation were not viewed as alter egos of the corporation itself. The scope of the rule permits interviews with all employees concerning their knowledge of factual matters outside the scope of their employment and interviews of former employees since they are no longer part of the corporate entity. (Emphasis supplied.)

Finally, the Illinois Bar Association committee opined than an attorney may communicate with a former control-group employee of an adversary party since "former employees are no longer in a position to act or speak on behalf of the corporation."Opinion No. 85-12 (April 4, 1986) (emphasis supplied) (ABA/BNA Lawyers' Manual, supra, Current Reports, Vol. 2, No. 10, June 11, 1986, at p. 191).

In a widely cited decision, the Supreme Court of Washington ruled that the term "party" in DR 7-104(A) (1) includes only those employees who have the legal authority to "bind" the corporation in a legal evidentiary sense. Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P. 2d 564, 569 (1984). "Since former employees cannot possibly speak for the corporation, we hold that CPR DR 7-104(A) (1) does not apply to them." Id. The Wright court explained that the purpose of the rule was to protect represented parties from the dangers of dealing with adverse counsel; thus, communications should be prohibited only with those employees who have the authority to bind the corporation. Id. Significantly, the court admonished that "[i]t is not the purpose of the rule to protect a corporate party from the revelation of prejudicial facts.”

Based upon the sound reasoning of these ethics opinions and the decision of the Supreme Court of Washington, the subscribers to this Alternative Opinion A believe that communication with the former employee of a party is ethically permissible. Even where a person's act or omission while an employee was imputed to the corporation, no act or omission of that individual can be so imputed after he has left the corporation's employ. Thus, nothing that the former employee does or says when discussing the subject matter of the suit with adverse counsel can be imputed to the corporation. In view of this basic fact, a prohibition on such communication would not foster the effective representation of the corporate party, but would only attempt to protect a corporate party from the revelation of prejudicial facts. ER 4.2 was not adopted to promote such an end.

Moreover, it must be noted that ER 4.2 is essentially identical to the former DR 7-104(A) (1). In view of the consistent opinions of the various bar association committees that DR 7-104(A) (1) does not preclude communications with former employees, it strains credulity to conclude that the American Bar Association attempted to effect such a radical change in the scope of the prohibition by means of the Comment to ER 4.2. If the Comment to ER 4.2 is interpreted to bar communications with former employees, the Comment clearly goes beyond the scope of the rule and should be disregarded. "The comments are intended as guides to interpretation, but the text of each rule is authoritative." Preamble to the Arizona Rules of Professional Conduct. (17A A.R.S. Sup. Rules, Rule 42)

2.         Conclusion

It is ethically proper for a lawyer or his or her agent to contact a former employee of a co-defendant without first obtaining consent of the co-defendant's counsel, even if the former employee occupied a managerial position or the former employee's acts or omissions are at issue in connection with the matter being litigated. The ethical propriety of such contacts in the instant case are unaffected by the presence or absence of the covenant not to execute.

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B.        Alternative Opinion B

The essential question presented by this inquiry is when, if ever, will an ex-employee of a party represented by counsel be deemed a party for purposes of ER 4.2.

1.         DR 7-104 and the underlying purpose of the prohibition on ex parte contacts.

The predecessor to ER 4.2 was DR 7-104(A) (1) of the Code of Professional Responsibility. Although DR 7-104(A) (1) prohibited a lawyer from contacting an adverse party represented by counsel, it did not define the term "party." Prior to the adoption of the Model Rules of Professional Conduct, it was generally believed that an attorney could contact any former employee of a corporation and those current employees who could not "speak for" or "commit" the employer. See Stahl, Ex Parte Interviews With Enterprise Employees: A Post-Upjohn Analysis, 44 Washington & Lee Law Review, 1181-82 (Summer 1987). The courts and ethics committees which considered the issue adopted a variety of tests to determine which employees were so identified with a business as to be its "alter ego." Id. at 1185.

The adequacy of the so-called “alter ego rule” was questioned by the New York City Bar Association committee in its Opinion 80-46 (ABA/BNA Lawyers' Manual, supra, pp. 801:6311-6312). That committee concluded that the term "party" must be construed in a manner that will assure the effective representation by counsel of a corporate party:

We believe that the principal interest reflected in DR 7-104(A) (1) is the party's right to effective representation of counsel. We see no distinction between corporate and individual parties in this regard. To provide his client effective assistance of counsel on matters in litigation, the corporate attorney must control to some extent the information passing from the corporation, through its employees, to its adversary. Indeed it is often proper for a lawyer to advise the client that he should not talk at all. A party has a right to refuse to volunteer information.

Even where the lawyer would not advise silence, interviews of corporate employees of an adverse party without the knowledge and consent of the lawyer for the corporate party may also undermine the right to effective representation of counsel since the lawyer may be required to supervise the manner in which information is elicited to prevent his client from making statements which, through ambiguous use of language, may not accurately or fairly reflect the client's position. We do not mean to suggest, of course, that an attorney is entitled to alter or shade the facts under the guise of zealous representation. But it is an acknowledged aspect of effective representation that the attorney aids his client both to avoid procedural pitfalls and to present truthful statements in the most favorable manner. As one commentator has suggested, the difference between the knowledge and skill of a lawyer and that of the adverse lay party justifies some limitations on the ability of an attorney to communicate directly with lay persons. "The layman, when he makes a statement, is -- unlike the lawyer -- unaware of the technical, procedural and evidentiary framework in which he is, in fact, operating." Kurlantzik, The Prohibition on Communication with an Adverse Party, 51 Conn. B.J. 136, 139 (1977). Id. pages 1200-1201.

As the author of “Ex Parte Interviews,” supra, noted:

The concept of effective representation is also inextricably intertwined with the obligations and burdens which the law, including the law of agency and evidence, imposes on parties. Thus, the New York City Bar Association elected to ground its opinion and conclusions on the 'rules of evidence and agency law [which] attach special significance to the acts or statements of an employee made within the scope of his employment." The committee pointed to the fact than an employee's statements might be admissible against the corporation as an admission of a party opponent and that, in any event, any statement by an employee of a corporation may well be given "special weight" by a judge or jury.

The employee's out-of-court statements which would otherwise be treated as hearsay, are admissible against the corporation as "admissions," pursuant to the Federal Rules of Evidence, if the statements are made by the employee about matters within the scope of his employment. Furthermore, since the finder of fact may attach special weight to such statements by an employee of the corporation, its counsel should be accorded knowledge of and control over access to these statements.

The Bar Association expressly rejected the use of the control group test for purposes of defining a party under DR 7-104.

We reject this alternative, however, because such a rule, in our view, would be difficult to administer and would require the adverse attorney to make a judgment with respect to which adversary employees are within the "control group" that he is not competent to make. Moreover, limiting the ban against communication to the "control group" of a corporation fails to recognize the realities of modern corporate operations and is at odds with the developments in the law in the areas that we have just discussed.

Thus, it is no longer true that only managing employees or employees within the "control group" are regarded as representatives of the corporation for purposes of speaking in its behalf. Pursuant to the evidentiary rule, for example, it is the subject matter of the employee's conduct or communication -- i.e., whether the conduct or statement is within the employee's scope of employment – rather than control group concepts, that is determinative in defining the corporate party. Accordingly, with respect to a particular transaction that is litigated, the power to "commit" the corporation could be vested in the most ministerial employee.

Quoted in “Ex Parte Interviews,” supra, at 1202-03.

The New York City committee concluded that the interests of a corporation could be adequately protected only by applying the prohibition of DR 7-104 to all of the current employees whom opposition counsel seek to question with respect to "acts in the scope of their employment." Id. at 1203. However, that committee was unwilling to expand the ban on ex parte contacts to all of an enterprise's employees or to its former employees. Id. at 1203.

The committee simply concluded, without any real analysis, that "former employees are no longer part of the corporate client entity. Moreover, under Rule 801(d) (2) (D), Federal Rules of Evidence, statements of former employees would not be an admission since the employer-employee relationship has ended." The committee did not even consider whether and, if so, to what extent communications between counsel for the enterprise and former employees might be protected by the attorney-client privilege. Likewise, the committee did not consider the fact that the enterprise continues to be exposed to potential liability when the subject of controversy arises out of or relates to conduct or statements by a former employee during the course of employment. As a practical matter, just as in the case of a current employee, effective representation of the enterprise requires that its attorney be free to communicate with such a former employee subject to the protection of the attorney-client privilege and that discovery be obtained from the former employee with enterprise counsel present. If ex parte contacts by adverse counsel are improper in the case of a current employee whose conduct or statements while employed might be deemed to be a party admission, or might give rise to liability on the part of the enterprise, the fortuity that the employment relationship has subsequently terminated is irrelevant to the continuing need for and the requirements of effective representation. Id. at 1205-06.

In a subsequent opinion (Formal Opinion 410 (1983), the Los Angeles County committee was asked to reconsider the propriety of ex parte contacts by opposing counsel (or counsel's investigator) with the employees of a corporation which was a party to litigation when the information sought from the employee relates to the subject of controversy. The committee concluded that the United States Supreme Court’s decision in Upjohn v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 26 584 (1981), was relevant to the resolution of the issue.

Although Upjohn is not controlling, it is certainly instructive as to whether or not the control group test should be rejected in determining which employees constitute the "corporate party." Its reasoning may be logically extended to ex parte contacts with a corporate party's employee by opposing counsel for at least four reasons.

First, the corporate employee may be prejudiced either directly or indirectly by the ex parte contact. Second, the corporation has an interest in seeing that information or knowledge learned by an employee in the course of the employee's employment is not released to a party with an interest inimical to the corporate employer without the protection and advice of counsel. Third, due to the difficulty of ascertaining whether an employee is acting within the scope of his or her employment, a corporate employee might be induced by opposing counsel into making admissions or statements that are binding upon the corporation. Fourth, due to the difficulty in ascertaining who is a control group member, opposing counsel might contact a party whom he believes is not a control group member, only to find out later that the person contacted was a control group member, thereby rendering the contact improper.

The rule prohibiting ex parte contacts should be extended to all employees of a corporate party because opposing counsel could cause a lay employee to divulge information such as legal advice of corporate counsel, trade secrets, or information considered attorneys' work product. If that is possible, corporate counsel is placed at a severe disadvantage because he or she will not be able to give confidential advice to non-control group employees without the assurance that such information and advice would "not be disclosed during an ex parte contact with opposing counsel. This is precisely the issue that Justice Rehnquist addressed in his opinion in Upjohn when he stated, "the attorney and client must be able to predict with some degree of certainty whether certain (particular) discussions will be protected." 449 U.S. at 393.

Quoted in "Ex Parte Contacts," supra, at 1209-1210.

These considerations may apply to former employees as well as to current employees. For example, in his concurring opinion in Upjohn, Justice Burger suggested that extension of the protection of the attorney-client privilege to communications with former employees might be appropriate under certain circumstances. Moreover, the Ninth Circuit has held that conversations between counsel for a corporation and the corporation's former employees may be protected by the attorney-client privilege even though the attorneys do not represent former employees individually. See In Re Coordinated Pretrial Proceedings, 658 F. 2d 1355, 1361, n.7 (9th Cir. 1981), cert. denied 455 U.S. 990 (1982). ("Former employees, as well as current employees, may possess the relevant information needed by corporate· counsel to advise the client with respect to actual or potential difficulties ... Again the attorney-client privilege is served by the certainty that conversations between the attorney and client will remain privileged after the employee leaves.") See also Porter v. Arco Metals, 642 F. Supp. 1116, 1118 (D. Mont. 1986) (holding that the term "party" included those *present or former employees with managerial responsibilities concerning the matter in litigation"); and Ex Parte Interviews, supra, at 1205, n.82.

2.         ER 4.2 and an expanded definition of the term "party"

Arizona adopted the Model Rules of Professional Conduct effective February·1, 1985. ER 4.2, cited above, is substantially identical to former DR 7-104(A) (1). However, the Comment to ER 4.2 quoted at page 2, above, is significant.

Based upon the Comment, there are at least three categories of "persons”2 who will be treated as a party under the rule:

(1) Those having managerial responsibility;

(2) Those whose acts or omissions are relevant to the corporation's potential civil or criminal liability; and

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1           Cf. Wisconsin Bar Association Op. E-82-10 (Dec. 1982) (ABA/BNA Lawyers' Manual, supra, p. 801:9107, (holding that even a *former managing agent" of a corporation can be contacted by counsel for an adverse party). The committee did caution that, in conducting such an interview, "the attorney should first apprise the former employee that he or she may have a continuing duty to the corporation not to reveal any confidential information which he or she may have acquired during the course of his or her employment by the corporation."

2                      It is worth noting that the Comment does not use the word "employee" but the word "persons" which may include former employees as well as current employees.

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(3) Those whose statements may constitute an admission on the part of the enterprise.

Although categories (1) and (3) will usually require current relationship with the corporation, category (2), on its face, would include both those who are currently employed and those who are former employees. In other words, the Comment to Rule 4.2 suggests that any person whose act or omission3 while employed may give rise to liability on the part of the corporation will be treated as a party for discovery purposes as well as for purposes of imposing liability. See Ex Parte Interviews, supra, at 1220.

In essence, this prohibition recognizes that, under the law of agency, certain employees' conduct will be deemed to be that of the adverse party for purposes of determining liability and that, as a matter of consistency and fairness, such individuals should be treated as parties for discovery purposes. The comment does not distinguish between those whose agency or employment relationship continues at the time of discovery, but instead focuses on the existence of the relationship at the time of the events in question, which is the relevant point in time for purposes of analyzing enterprise liability for an employee's acts or omissions.

Id.

For example, in the simplest of cases, the employer's liability may turn on the actions of a person whose only responsibility while employed was to drive a truck. If that person was involved in an accident while employed, as a practical matter, the ability of the employer to defend itself will turn on the ability of the driver to explain and defend his or her conduct, and the interaction of the driver with counsel for the employer. The requirements of effective representation do not change simply because the driver terminates employment between the time of the accident and the time of trial. The Comment to ER 4.2 recognizes that a person who is treated as a party for purposes of imposing liability should also be treated as a party for purposes of discovery.

There is another consideration which needs to be taken into account by a lawyer before making an ex parte contact with a former employee:

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3           In this context, an act or omission could also include a statement made or not made during the course of the employment relationship.

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Although the text of Rule 4.2 expressly prohibits contact with those whom "the lawyer knows to be represented by another lawyer in the matter," the accompanying comments unfortunately limit by implication the concept of a "party" to agency and evidentiary considerations. While these concepts are essential to an analysis of the requirements of effective representation by counsel, the policy considerations underlying the attorney-client privilege are at least as important. Although it appears that the modification of the comment to ER 4.2, which occurred shortly after Upjohn was decided, was influenced by the United States Supreme Court's analysis of the attorney-client privilege in the corporate context, Rule 4.2 of the Model Rules of Professional Conduct does not make it clear that adverse counsel's communications with any employee of an organization who may have privileged communications with enterprise counsel could be unethical. ER 4.2 (the counterpart of DR 7-104[A]Il]) must be read with ER 1.6(a) (the counterpart of DR 4-101[B]) in order to fully appreciate the limitations placed on counsel's ex parte contacts with the employees of an enterprise. In other words, only by a careful analysis of the Model Rules, recent court decisions, and the opinions of the bar associations, will a lawyer come to realize that the three categories of employees expressly enumerated in the comment to ER 4.2 are not necessarily exhaustive.

For example, in the Upjohn case, the employees and former employees interviewed by counsel for the company were not necessarily individuals who themselves participated in illegal activities. Employees who might have had knowledge of illegal activities by others were also interviewed, and the Supreme Court held that their communications with counsel were privileged. While an employee with knowledge of illegal conduct by other employees might not fall in any one of the three categories of employees enumerated in the comment to ER 4.2, nevertheless, because their communications with enterprise counsel may be deemed to be privileged, any effort by opposition counsel to discover such communications would be improper.

See Ex Parte Interviews, supra, at 1221-1222. In other words, just as it would be improper for a lawyer to reveal a client's secrets, it would also be improper for him or her to attempt to invade another's attorney-client privilege. Id. at 1222, n. 134.

3.         Conclusion

In summary, the answer to the first question posed appears to be that ex parte contact with a former employee is prohibited if the acts or omissions of the former employee, while employed, may be imputed to the employer for purposes of establishing liability. Ex parte contact may also be improper if the former employee has had communications with counsel for the former employer that are protected by the attorney/client privilege and relate to the subject matter of the proposed contact.

The second question posed assumes that, because the co-defendant has obtained a covenant not to execute from the plaintiff, the co-defendant is not exposed to any further liability. While it may be true that such a co-defendant is not exposed to further liability to the plaintiff, it may still be exposed to liability to other defendants, including the co-defendant represented by the attorney who wishes to make an ex parte contact, or to third parties who are not defendants. Therefore, it appears that the fact that the co-defendant has obtained a covenant not to execute from the plaintiff is irrelevant and would not change the answer to the first question.

 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 proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1989



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