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132 N.J.L.J. 573
November 2, 1992
1 N.J.L. 1705
November 2, 1992
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 668
Ex Parte Communication with Former
Employees of Corporate Defendants
We are asked whether a lawyer may ethically conduct ex parte
interviews of former employees of corporations that are adverse
parties in litigation and what limitations, if any, are imposed
upon such interviews by the Rules of Professional Conduct. The
applicable Rules are:
RPC 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.
RPC 4.3 Dealing with Unrepresented Person
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.
The inquiry may well have been prompted by uncertainty
generated by the holding of the Appellate Division in State v.
CIBA-GEIGY Corp., 247 N.J. Super 314 (1991) which dealt with ex
parte interviews of current employees of a corporate litigant.
Although it appears that the Supreme Court granted a motion for
leave to appeal from that decision, we are advised that the matter
was thereafter dismissed.
A careful review of the Appellate Division decision leads us
to conclude that its rationale applies with equal force to the
conduct of ex parte interviews of former employees of a corporate
litigant.
Indeed, in its analysis of the scope of protection afforded by
RPC 4.2, the Court rejected the polar extremes - the "plain
language" construction which would limit the definition of the word
"party" to the corporate entity named in the pleadings and its
antithesis - the view which would prohibit all ex parte interviews
including those of former employees, as enunciated by Judge Politan
in Public Service Electric and Gas Co. v. Associated Electric & Gas
Ins. Services, Ltd., 745 F.Supp. 1037, 1039-42 (D.N.J. 1990).
Having rejected the "bright line" views, the Appellate
Division expressly adopted the position taken by the New York Court
of Appeals in Niesig v. Team I, 76 N.Y. 2d 363, 559 N.Y.S. 2d 493,
496, n.3, 558 N.E. 2d 1030, 1033, n.3 (1990) quoting therefrom in
haec verba:
The single indisputable advantage of a blanket preclusion
- as with every absolute rule - is that it is clear. No
lawyer need ever risk disqualification or discipline
because of uncertainty as to which employees are covered
by the rule and which not. The problem, however, is that
a ban of this nature exacts a high price in terms of
other values, and is unnecessary to achieve the
objectives of DR 7-104(A)(1) [the predecessor to RPC 4.2
which contains substantially the same language]. [559
N.Y.S. 2d at 497, 558 N.E. 2d at 496]
* * *
The test that best balances the competing interests, and
incorporates the most desirable elements of the other
approaches, is one that defines 'party' to include
corporate employees whose acts or omissions in the matter
under inquiry are binding on the corporation (in effect,
the corporation's 'alter egos') or imputed to the
corporation for purposes of its liability, or employees
implementing the advice of counsel. All other employees
may be interviewed informally.
Unlike a blanket ban or a 'control group' test, this
solution is specifically targeted at the problem
addressed by DR 7-104(A)(1). The potential unfair
advantage of extracting concessions and admissions from
those who will bind the corporation is negated when
employees with 'speaking authority' for the corporation,
and employees who are so closely identified with the
interests of the corporate party as to be
indistinguishable from it, are deemed 'parties' for
purposes of DR 7-104(A)(1). Concern for the protection
of the attorney-client privilege prompts us also to
include in the definition of 'party' the corporate
employees responsible for actually effectuating the
advice of counsel in the matter. [Id. at 498, 558 N.E.
2d at 1035].
Immediately following the foregoing excerpts from Niesig v.
Team I the Appellate Division said:
We are not the Supreme Court which can amend or clarify
its rule, and we fully recognize that the broader we
define the word "party" the more we narrow pretrial
discovery of facts. [n.9]. However, we know no better
way than the New York Court of Appeals to balance the
purpose of the Rule with the realities and practicalities
of conducting litigation. That balance may at first, as
in New York, be somewhat difficult to apply. It may even
deter some ex parte civil discovery, there is no great
social or policy sacrifice; it will promote other types
of discovery, such as by deposition upon notice to the
adversary.
n.9 Our Rules have express provisions relating to
depositions of corporations through designated officers,
directors or managing agents. See R. 4:14-2(c); R. 4:16-
1(b). [State v. CIBA-GEIGY Corp., supra, 247 N.J. Super
at 325.
Now, all of this is strictly subject to the risk of possible
intrusion upon privileged matters, the caveat expressed in the last
sentence in the quotation from Niesig v. Team I, supra, 76 N.Y. 2d
363, 559 N.Y.S. 2d 493. The right to conduct ex parte interviews
of former employees is not a license to penetrate privileges. See
Stempler v. Speidell 100 N.J. 368 (1985) laying down conditions
upon which a treating physician may be interviewed (instead of
being deposed).
In AAMCO Transmissions, Inc. v. Michael A. Marion, 1991 U.S.
Dist. LEXIS 13326 (E.D. Pa. 1991) the Court rejected a claim of an
RPC 4.2 violation, noting that there had been no showing as to how
counsel could have known that the person contacted would possess
information subject to the attorney-client privilege. Id. at 6.
In footnote 2, the Court observed: "Plaintiffs rely upon Oak
Industries v. Zenith Industries, 1988 WL 79614 (N.D. Ill. 1988).
In that case, the ex parte contacts at issue were with Plaintiffs'
former general counsel, an individual who clearly could be expected
to possess information subject to the attorney-client privilege."
In short, ex parte interviews of current or former corporate
employees involve potential hazards which can often be avoided by
agreement with counsel for the corporate party.See footnote 1
1
The risks are
serious.
The need for RPC 4.2's protection to extend to individuals
having access to litigation confidences was noted in the case of
Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36, 40 (D.
Mass. 1987), where the Court, discussing another case, said:
Moreover, the court stressed that even if the employee
had been considered a former employee, DR 7-104 would
still apply because he was a "former confidential
employee, a confidential consultant and a member of MGM's
litigating team for this case." Id. Once the employee
had resigned as vice president, he signed a consulting
agreement that required him to assist in the litigation;
he continued to work with the lawyers in preparation for
litigation; and was privy to confidential information
regarding the litigation. His consulting duties included
such sensitive tasks as helping to draft interrogatories
and assisting counsel at depositions, and in fact he was
listed as an expert witness for the opposing party.
(citation omitted) (emphasis added).
See also ABA Committee on Professional Ethics and Grievances Formal
Opinion 47 (decided under the Canons of Ethics) (attorney ought to
be disqualified where he learned the substance of privileged
communications concerning the matter through an informal interview)
and Cf. Gray v. Commercial Union Ins. Co., 191 N.J. Super 590 (App.
Div. 1983) mere access to confidential communications leads to an
irrebuttable conclusion that such secrets had been obtained, and
must result in disqualification of counsel).
Prophylaxis is always sound policy where the unrepresented
former employee is to be interviewed ex parte, and this is the
theme of RPC 4.3. We have noted the safeguards prescribed by the
Supreme Court in Stempler, supra, 100 N.J. 368, and other Courts
have been equally circumspect. In Morrison v. Brandeis University,
125 F.R.D. 14 (D. Mass. 1989) the Court granted a motion for leave
to interview present and former employees of the defendant but
prescribed the following guidelines:
1. When plaintiff's counsel initially contacts any person as
to which authorization to interview has herein been given
(hereinafter, "any person"), she shall immediately
disclose her capacity as counsel for the plaintiff in the
above-styled litigation and the purpose of the contact,
i.e. to request and interview.
2. Whether or not to grant the request for an interview is
completely up to the person, and the person's decision
shall be respected.
3. Any request by any person that the interview take place
only in the presence of his or personal attorney and/or
the presence of Brandeis' attorney shall be honored.
4. Brandeis shall advise all persons within the group which
plaintiff's counsel has herein been given authorization
to interview that they may, if they wish, agree to be
interviewed by plaintiff's counsel to discuss matters
which relate to this case and that disciplinary or other
adverse action will not be taken by Brandeis against any
person who consents to an interview.
Finally, ABA Formal Opinion 91-359 (1991) dealt with the
precise subject matter and reached essentially the same
conclusions. In summary, ex parte interviews of former employees
of a litigant are not per se improper under the Rules of
Professional Conduct, but one sails rather close to the wind in
undertaking such measures. The risks ought to be weighed carefully
before doing so.
Given the impracticality of fashioning a "bright line," these
situations do not lend themselves to empirical resolution. Obvious
questions are presented in every case. Is (or was) the former
employee part of the corporate "litigation team" involved in the
litigation? Was he or she privy to confidential communications?
How long ago did employment cease? Is there any possibility that
the former employee may become a party? How can the lawyer prove
compliance with RPC 4.3? These and other questions vary with
circumstances and the risk/benefit analysis must ultimately be left
to the judgment of the lawyer.
* * *
Footnote: 1 1 And always avoided by deposition.
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