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 97-36
Plaintiff has filed a Complaint alleging breach of implied warranty and negligence against Defendant. Defendant alleged that Plaintiff's contributory negligence was of the magnitude to bar the Plaintiff 's claim, but no counterclaim was filed. Both entities are corporations. The Defendant's attorneys wish to interview a former employee of the Plaintiff ex parte. This former employee was a member of the Plaintiff's "control group" while employed with the Plaintiff. The Defendant does not anticipate that any acts or statements of the former employee while employed constitute the Plaintiff's negligence. The former employee may be able to speak to the issue of the Plaintiff's contributory negligence.
QUESTION:
May the Defendant's attorneys conduct an ex parte interview of this former employee of the Plaintiff?
SUMMARY:
Defendant corporation's attorneys may not conduct an ex parte interview of a former employee of the Plaintiff's corporation if the former employee was a member of the Plaintiff's "control group" and his admissions may bind the Plaintiff s corporation.
OPINION:
If the former employee is represented by an attorney in this matter, the Defendant may not discuss the case except with authorization or the attorney's consent. Rule 4.2, SCACR 407. For purposes of this opinion, the assumption is that the former employee is not represented. The key fact in determining this opinion involves the potential effect of the former employee's statements. The comment to Rule 4.2 states: "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 admission 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."
In this set of circumstances, contact of this witness by the defendant's attorney would not be allowed. The plain language of Rule 4.2 bars this ex parte contact with this former employee because of his past managerial responsibilities concerning the matter in litigation.
Further, this former employee is able to testify as to the issue of the Plaintiff's contributory negligence. Considering that he is also a former member of the Plaintiff's "control group", it is possible that his admissions would bind the Plaintiff corporation. Also, his statements may be imputed to the Plaintiff corporation.
These factors would cause the Defendant's attorneys' ex parte contact with this witness to be proscribed regardless of whether the employee's conduct is the subject of the litigation.