Getting The Winning Edge: Appreciating The Permissible Boundaries For Contracting Your Adversary's Current And Former Employees
December, 2005
by Allison K. Ferrini and Dean S. Rauchwerger
Litigation is frequently competitive, hard-fought and fraught with many hurdles. Developing a winning case requires that you and your counsel seek the edge at every step in the journey. Big opportunities for marshalling critical testimony and evidence exist by pursuing permissible ex parte contacts with your adversary’s current and former employees. Below is a general discussion of the ethical boundaries and practical tips for effectively contacting and interviewing such witnesses.
The first step is to understand the proscriptions of ABA Model Rule 4.2 of the Rules of Professional Conduct, the ABA Rules of Conduct, state equivalents and your jurisdiction’s applicable case law. Model Rule 4.2, Communications Between Lawyer And Opposing Parties, provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.
A. In Search of the Talkative Employee Witness: Contacting Current Employees
Certain employees of a represented corporation or other organizational entity are considered to be represented by the corporation’s or organization’s lawyer for purposes of Model Rule 4.2 and are off-limits. The hook, however, is that a corporation or organization may not assert blanket representation for all of its constituent employees. See Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 6 (D.D.C. 2004) (holding that counsel for defendant may not use their concomitant right to withhold their consent as a means to prevent plaintiff’s counsel from interviewing present or former employees); Michaels v. Woodland, 988 F. Supp. 468 (D.N.J. 1997) (holding that an employer cannot unilaterally impose its counsel’s representation on all employees).
The comment to Model Rule 4.2, as amended in 2002, introduces the formula for analyzing the employee’s role and authority to determine which current employees are considered off-limits. Comment [7] explains that ex parte communications are prohibited with an employee who “supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Thus, those current employees tied to the corporate attorney-client relationship or whose acts and/or omissions give rise to vicarious liability are off-limits. The judicial goal is to ensure that a corporation’s legal rights, including the attorney-client privilege and work product doctrine, are protected. See Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 728 (N.D. Ill. 1996) (allowing contact with certain employees but barring any discussion of privileged information). Still, the fact that a current member of an organization may possess privileged information or general information about the entity or the incident does not in itself make an ex parte contact with that individual unethical under Model Rule 4.2. The key to opening the door to ex parte contacts is understanding how the ethical rules apply and the appropriate practical steps to follow.
Bottom line -- proceed with caution before contacting a current employee of an opposing party and diligently observe the ground rules:
Key points:
a) avoid speaking with current employees who regularly consult with the organization’s lawyer regarding the matter;
b) avoid speaking with current employees who have the authority to obligate the organization with respect to the matter; and
c) avoid speaking with current employees whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
If you contact a current employee:
a) do not use methods of obtaining evidence that violate the corporation’s legal rights; and
b) do not probe into areas subject to attorney-client privilege or work-product doctrine.
Preliminary questions one should cover:
a) What is your status at the organization?
b) Are you represented by counsel?
c) Have you spoken to the organization’s counsel concerning the matter at issue?
d) Evaluate whether the employee witness was personally involved in the underlying events that may give rise to the employer’s vicarious liability for the employee’s acts and/or omissions, imputable to the employer.
B. In Search of Burned Bridges -- Contacting Former Employees
The majority of courts allow lawyers to interview ex parte all former employees, including managers of corporate parties, as former employees cannot bind the organization and their statements cannot be introduced as admissions of the organization. The 2002 version of Model Rule 4.2, Comment [7], states that “[c]onsent of the organization’s lawyer is not required for communication with a former constituent.” Some courts, however, limit contact if the former employee’s acts or omissions may be imputed to the corporation, or if the former employee has an ongoing agency or fiduciary relationship with the corporation.
When contacting former employees, as with current employees, the key is to proceed with caution. Model Rule 4.2 Comment [7] cautions that when communicating with a former constituent, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization, such as inquiries seeking to discover privileged information. The ABA Ethics Committee also cautions that when communicating with such persons, counsel must be careful not to induce the former employee to violate any attorney-client privilege that the former employee may have incurred, or been privy to, during the course of his or her former employment. ABA Formal Op. 91-359. Counsel must also comply with ABA Model Rule of Professional Conduct 4.3, requiring the attorney to identify the nature of his or her role in the matter for which counsel is contacting the person. Specifically, Model Rule 4.3 requires that the attorney identify his or her client and that the client is an adverse party to the unrepresented person’s former employer. One must also ensure that the former employee is not represented by personal counsel or by the former employer’s counsel.
C. Conclusion
The strategic benefits of obtaining valuable evidence and information through informal discovery focusing on permissible contacts with your adversary’s current and former employees cannot be overestimated. Amazingly, these are powerful opportunities that are often overlooked and not pursued because of the mistaken perception that they are not ethically allowed or pose too many landmines. While important boundaries do exist, if you proceed prudently by assiduously following the ethical rules and governing law of your state, you have the opportunity to score big points by developing your case through permissible ex parte contacts with your adversary’s current and former employees. This type of informal case development may significantly bolster the strength of your case, undercut your adversary’s positions and go beyond the typical costly deposition process -- all of which enables your side to “Get the Winning Edge!” •
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