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 94-25
A client suffers injuries on the premises of a potential defendant as a result of a slip and fall. The attorney wishes to investigate the accident to determine the existence of any claim. Any information obtained will be used against the prospective defendant or otherwise imputed to it to establish liability.
Questions:
1. May the attorney or anyone on his behalf, before filing suit, contact current employees of the potential defendant in order to obtain information, including signed written statements?
2. May the attorney or anyone on his behalf, before filing suit, contact former employees of the potential defendant in order to obtain information, including signed written statements?
3. May the attorney or anyone on his behalf, after filing suit, contact current employees of the potential defendant in order to obtain information, including signed written statements?
4. May the attorney or anyone on his behalf, after filing suit, contact former employees of the potential defendant in order to obtain information, including signed written statements?
Summary:
A lawyer for one party may not discuss his client's case with another party, who is also represented by a lawyer in the matter, unless the lawyer has the other counsel's consent or is authorized by law or rule to do so. This communication may not be accomplished directly, or indirectly, as through an investigator or agent. A "corporate party" includes certain of its employees and agents. Generally, a lawyer may communicate with an opposing party's corporate employees so long as those employees are not members of the corporate "control group" and cannot bind the corporation or entity by their admissions. A lawyer may communicate with former employees of a corporate opponent only if the statements or actions of the former employee cannot be imputed to the corporation and if the employee's conduct is not the subject of the representation. There is no distinction between prefiling and post-filing of a lawsuit. The Rule applies to parties who are or may likely be opponents in a disputed matter.
Opinion:
(Contact with Current Employees) SCACR 407, 4.2 states: "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." When the adverse party is a corporation, questions frequently arise concerning which officers and employees or former officers and employees may be interviewed without the consent of the corporation. The general rule is that, absent the permission of the corporation's counsel, an opposing lawyer may not speak to current employees who by virtue of their authority are able to bind the company in the situation at hand. The purpose of the rule is not "to protect the corporate party from the revelation of prejudicial facts . . . but to preclude the interviewing of those corporate employees who have the authority to bind the corporation." Wright v. Group Health Hospital, 103 Wa.2d 192, 691 P.2d 564 (1984). ABA Informal Opinion 1410 (1978) states: "If the officers and employees that a lawyer proposes to interview could commit the corporation because of their authority as corporate officers or employees or for some other reason the law cloaks them with authority, then they, as the alter egos of the corporation, are parties for purposes of DR 7-104(a)(1)." While some courts restrict the prohibition to those in the corporation's "control group", others completely proscribe contacts with corporate employees irrespective of whether they are in management positions. New York County Ethics Opinion 528 (1965); Los Angeles County Formal Ethics Opinion 410 (1983); San Diego Ethics Opinion 1984-5 (1984).
In ABA Formal Opinion 91-359 (1991), the Standing Committee on Ethics analyzed not only Model Rule 4.2 (identical to the South Carolina Rule), but the predecessor rule, DR 7-104(a)(1), which was also substantially similar. Both the rules and the comments make clear that "corporate parties" are included within the meaning of "party". The Committee relied upon Wright, supra, for finding the rationale for Rule 4.2: "The purpose of the Rule against ex parte communications with represented parties is 'preserving the proper functioning of the legal system and shielding the adverse party from improper approaches.'" Id. at 576; citing ABA Formal Opinion 108 (1934).
Traditionally, the profession has considered that the presumptively superior skills of the trained advocate should not be matched with those of one not trained in the law.
(Contact With Former Employees) The Standing Committee stated in that Opinion that the 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. In agreement, the New York court held, in interpreting DR 7-104(a)(1), that the rule applies only to current employees, not to former employees. Niesiq v. Team 1, et al., 76 N.Y.2d 63, 558 N.E.2d 1030 (1990). The New York court reasoned that former employees could not possibly speak for or bind the corporation. See also, Wright, supra. This has been the most liberal view expressed on this issue.
Other courts are more cautious. The concerns reflected in the comment to Rule 4.2 may survive the termination of the employment relationship. Former employees have been held to be covered under certain circumstances. Rule 4.2 has been held to bar ex parte contacts with former employees who, while employed, had managerial responsibilities concerning the matter in litigation.
Porter v. Arco Metals, 642 F. Supp. 1116, 1118 (D. Mon. 1988). See also, Amarin Plastics v. Maryland Cup Corp., 116 F.R.D. 36 (D.Mass. 1987). The rationale of Upjohn v. United States 449 U.S. 383 (1981) is that corporate attorney-client privilege applies to former as well as current corporate employees. In Public Service Electric & Gas Company v.
Associated Electric & Gas Insurance Services, Ltd., 745 F.Supp. 1037 (D. N.J. 1990), the court interpreted Rule 4.2 to cover all former employees. Commentators on the subject have likewise urged application of the prohibition on contacts to at least some former corporate employees. Stahl, "Ex Parte Interviews With Enterprise Employees: A Post-Upjohn Analysis", 44 Washington & Lee Law Review 1181, 1227 (1987); Miller & Calfo,"Ex Parte Contact With Employees and Former Employees of a Corporate Adversary: Is It Ethical?", 42 Business Law 1053, 1072 (1987).
Caution is advisable with respect to any communication with an un-represented former employee. The communicating adversary attorney must not induce the former employee to violate any privilege attaching to attorney-client communications to the extent his communications with his former employer's counsel are protected by the privilege. The lawyer should comply with the requirements of Rule 4.3. This Rule addresses a lawyer's dealings with un-represented persons. The lawyer contacting a former employee of an opposing corporate party must make clear the nature of the lawyer's role in the matter, including the identity of the lawyer's client and the fact that the witness' former employer is an adverse party. See Brown v. Peninsula Hospital Centers, 64 A.D.2d 685, 407 N.Y.S.2d 586 (Ap. Div. 1978).
SCACR Rule 407, 4.3 provides as follows: "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 un-represented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." While acting on a client's behalf, a lawyer must not give another person who is not represented by counsel any advice other than the advice to seek counsel. When interviewing a former employee, an individual must be informed, however, of the lawyer's exact role. In re: Milita, 492 A.2d 380 (N.J. S.Ct. 1985); Brown v. Peninsula Hospital Center, 407 N.Y.S.2d 586 (App. Div. 1978); ABA Informal Ethics Opinion 908 (1966); Arizona Ethics Opinion 87-25 (1987); New Hampshire Ethics Opinion 1984-5/4 (1984); Contra, W.T. Grant Co. v. Haines, 531 F.2d 671, 676 (2d Cir. 1976).
This Committee, in South Carolina Bar Advisory Opinion 92-31 (Dec. 1992), stated that the plaintiff's counsel may not contact former employees whose actions were alleged to be negligent on the subject matter of the representation. ABA Formal Opinion No. 91-359 was distinguished on its facts. When allegations addressed specifically to the acts or omissions of certain employees are imputed to a defendant, these restrictions should apply. The Committee noted the comment to Rule 4.2 stated that contact is prohibited not only with persons having managerial responsibility but with "any other person whose act or omission in connection with that matter may be imputed to the organization." In Shoney's Inc. v. Lewis, 875 S.W.2d 541 (1994), the Kentucky Supreme Court disqualified counsel and suppressed the statements obtained where before filing the complaint but outside the presence of the opposing party's counsel, the lawyer interviewed the corporation's general manager and relief manager. The Court held the Rule applied to both before and after formal proceedings had begun. See also, U.S. v. Jamil, 546 F.Supp. 646 (E.D. N.Y. 1982), rev'd on other grounds 707 F.2d 638 (2nd Cir. 1983); Tucker v. Norfolk & Western Railway, 849 F.Supp. 1096 (E.D. Va. 1994).
The rule prohibiting contact with employees (current or former) may apply more broadly in a slip and fall case in which notice is a significant issue and a condition of liability. Contact may be allowed in other types of cases when the employee is an "observer" and is not charged with any negligent act which may be imputed to the organization and is not an employee whose admission can bind the organization.