UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 01-01
See note at end of opinion.
To the extent that prior opinions 97-36, 94-25 and 92-31 are inconsistent with the following opinion, they are expressly overruled.
FACTS:
Attorney wishes to investigate a possible suit against Corporation X in a premises liability case. One theory of liability is that corporation's Former Employee was negligent in failing to adequately clean the floor. Another theory is that the corporation was negligent in failing to provide Former Employee with enough assistance or supplies to adequately clean the floor. Former Employee no longer works for Corporation X.
Prior to filing suit, Attorney would like to contact Former Employee of Corporation X to investigate the claim. No suit has been filed, and Corporation X has not been put on notice of the claim.
QUESTIONS:
1. May Attorney contact Corporation X's Former Employee to investigate the claim prior to filing suit?
2. Are there any limitations on Attorney's ability to interview Corporation X's Former Employee?
3. If an interview provides favorable information, may Attorney obtain an affidavit from Former Employee prior to filing suit?
SUMMARY:
Under the Rules of Professional Conduct, Attorney may contact Former Employee of Corporation X so long as Former Employee is not represented by counsel and Attorney fully discloses the nature of the matter and purpose of the contact. Attorney must be acutely aware of his obligations under rule 4.4, and be careful not to elicit the privileged or confidential information of Corporation X.
OPINION:
Rule of Professional Conduct 4.2 provides:
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.
The instant facts state that Former Employee is exactly that, a former employee, and therefore, not a party to any litigation, either pending or threatened. Under the facts presented, it is the opinion of this Committee that Attorney may contact Former Employee without violating Rule 4.2, unless Attorney has knowledge that Former Employee is represented by counsel. See S.C. Ethics Adv. Op. 98-19.
Although not expressly asked, it is important to address the question of whether Former Employee may be contacted when Attorney has knowledge that Corporation X is represented by counsel. Application of Rule 4.2 to these facts, again, allows contact with Former Employee. Former Employee is not a party in the matter because he or she no longer works for Corporation X. Former Employee may once have been a "party" under this Rule, but he or she no longer is when the employment ceases. Termination of the employment relationship precludes the ability of Corporation X to be bound by anything Former Employee says or does. See, South Carolina and Federal Rule of Evidence 801(d)(2)(D) (admission by Party-Opponent is "a statement made 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." (emphasis added)). Former Employee is not represented by counsel for Corporation X for purposes of Rule 4.2. To the extent our Ethics Advisory Opinion 97-36 is inconsistent with this opinion, it is hereby expressly overruled. See generally, ABA Formal Opinions 91-359 (1991) ("prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party") and 95-396 (1995) ("It should be noted that Rule 4.2 does not prohibit contacts with former officers or employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed.")
With respect to the second question posed regarding limitations on Attorney's ability to interview Former Employee, it is helpful to review the requirements of Rule 4.3. This rule states:
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.
Attorney must inform Former Employee of his or her role, the identity of Attorney's client, the fact that former employer is an adverse party, and why Attorney seeks to interview Former Employee.
It is also extremely important to review Rule 4.4 which states:
In representing a client, a lawyer shall not use means that have no 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.
(emphasis added).
Attorney must be careful when delving into confidential or privileged areas in the interview with Former Employee. Attorney must be careful, however, not to seek to induce Former Employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer's counsel are protected by the privilege. Such an attempt would violate Rule 4.4. Likewise, it may be improper to induce a former employee to divulge other types of confidential or proprietary material under Rule 4.4. See Camden v. State of Maryland, 910 F.Supp. 1115, 1116 (D. Md. 1996) ("a lawyer representing a client in a matter may not, subject to a few exceptions, have ex parte contact with the former employee of another party interested in the matter when the lawyer knows or should know that the former employee has been extensively exposed to confidential client information of the other interested party.").
With respect to the last inquiry posed, Attorney may obtain an affidavit from Former Employee prior to filing suit, as long as none of the rules above are violated.
The Committee admonishes the Bar to be careful when contemplating contact with former employees. "The attorney who seeks [prior] court approval does not risk an ethical violation, but one who does not acts at his or her own peril." In re Aircrash Disaster, 909 F.Supp. 1116 (N. D. Ill. 1995). Such an interview is "a veritable minefield in which. . . . short and tentative steps are the most appropriate." Driggs Reorg. Corp. v. Driggs, 217 B.R. 67 (D. Md. 1988). Because the American Bar Association Standing Committee on Ethics and Professional Responsibility or the South Carolina Ethics Advisory Committee provides a particular analysis and interpretation of Rule of Professional Conduct 4.2, does not mean that a particular court in or outside the State of South Carolina will draw the same conclusions. Of particular note is that federal law governs the conduct of attorneys in federal courts. In re Snyder, 472 U.S. 634, 645 n.6 (1985).
In the State of New Jersey, for example, three separate Federal District Court judges came up with three separate tests for allowing ex parte contacts with former employees. See, Public Service Electric & Gas Co. v. Associated Electric & Gas Insurance Services Ltd., 745 F.Supp 1037 (D. NJ 1990); Curley v. Cumberland Farms, Inc., 134 F.R.D. 77 (D. N.J. 1991); and In re The Prudential Insurance Co. of America Sales Practices Litigation, 911 F.Supp. 148 (D. N.J. 1995). To add confusion, the judge in the PSE&G case reversed his position recently in Andrews v. Goodyear Tire & Rubber Co., Inc., 2000 WL 175098 (D. N.J. 2000). The Southern District of New York engaged in an excellent analysis of the issue, reaching the conclusion that interviews with former employees were allowed in Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621 (S.D. N.Y. 1990). Likewise, courts in Illinois, Michigan, and Connecticut have allowed contact with former employees. Orlowski v. Dominick's Finer Foods, Inc., 937 F.Supp. 723 (N.D. Ill. 1996); Valassis v. Samuelson, 143 F.R.D. 118 (E.D. Mich. 1992); and Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991). In Virginia, ex parte contacts with former employees have been precluded where the former employee's statements may impute liability to the former employer. Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D. Va. 1998).
In Florida, some courts draw the line not on the nature of the prior employment, but rather on the former employee's knowledge. Contact may be had with any ex-employee, but no confidential information may be elicited. Rent Club Inc. v. TransAmerica Rental Finance Corp., 811 F.Supp. 651 (M.D. Fla. 1992). In another case, however, a Florida court decided that ex-employees can be freely interviewed ex parte, but only subject to a series of guidelines that range from counsel identifying him or herself as adverse to the former employer to counsel delivering all of his or her work product to the other side, listing the employees contacted and all interview notes. Lang v. Reedy Creek Improvement District, 888 F.Supp. 1143 (M.D. Fla. 1995).
Without being mindful of the views of various courts and jurisdictions on this subject, attorneys may find their evidence excluded and themselves disqualified from further representation. See, Zachair Ltd. v. Driggs, 965 F.Supp. 741 (D. Md. 1997). It is the interpretation of this Committee, however, that Rule 4.2 does not, at present, preclude ex parte communications with former employees. Any other interpretation "should be made by a duly promulgated amendment to the rule itself, rather than by the gloss of caselaw." Davidson Supply Co., Inc. v. P.P.E., Inc., 986 F.Supp. 956, 958 (D. Md. 1997) (disagreeing with the Zachair opinion and relying upon the interpretation of Rule 4.2 given by the Maryland State Bar Association).
COMMITTEE NOTE:
This issue engendered much discussion among the committee members. Some members were of the opinion that a lawyer could not properly communicate ex parte with a former employee who was a member of the former employer’s control group. Others believed that it was improper for a lawyer to communicate with a former employee whose act or omission may be imputed to the organization for purposes of civil or criminal liability.