Bar Counsel

Making Contact

The rules for contacting employees of represented entities

Most of us are familiar with and have a good understanding of the prohibition against contacting a represented person. DR 7-104(A)(1) states that a lawyer (whether representing a client or acting in the lawyer's own interest) shall not 'communicate … on the subject of the representation or on directly related subjects with a person the lawyer knows to be represented by a lawyer on that subject or on directly related subject…'1 Compliance with the rule becomes somewhat more complicated when the 'person' represented is a private or public entity.

OSB Formal Op. No. 1991-80 is the primary Oregon authority on the issue. Extrapolating from admittedly conflicting authority in other jurisdictions in the absence of any Oregon cases, the opinion concludes that a current employee of a represented corporation is deemed represented for purposes of DR 7-104(A)(1) if the current employee is part of 'corporate management or a corporate officer or director' or if the current employee's conduct is at issue in the matter. If the current employee does not fall within either category, then contact without consent of the corporation's lawyer is permitted. The opinion also concludes that a former employee is not within the scope of DR 7-104 regardless of the position he or she held while employed by the corporation.2 The opinion cautions, however, that right to contact an employee does not allow the contacting lawyer to invade the corporation's attorney-client privilege. The contacting lawyer must be careful not to inquire about or permit the employee to disclose any communications the employees had with the employer's counsel that may be privileged or protected by the work-product doctrine.

OSB Formal Op. No. 1998-152 addresses the application of DR 7-104(A)(1) when the represented entity is a government agency. It applies the same analysis as the earlier opinion, holding that, except with the prior consent of agency counsel, a lawyer cannot communicate with current employees of a represented state agency who are the equivalent of corporate officers, directors and managers, or with current employees whose conduct is at issue in the matter. The opinion also concludes that a former employee of the subject agency is a former employee for purposes of applying DR 7-104 even though the person may continue to be employed by the state in a different agency.

ABA Model Rule 4.2 is essentially identical to DR 7-104(A)(1),3 and leads to the same result. Comment 5 to MR 4.2 provides that 'in the case of an organization, this Rule prohibits communication …with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization…or whose statement might constitute an admission on the part of the organization.' Application of MR 4.2 is explained in ABA Formal Opinion 91-359. The opinion discusses conflicting results in cases involving contact with former employees, but ultimately reaches the same conclusion as OSB Formal Op. No. 1991-80. In the absence of a prohibition in the text of MR 4.2, and because the effect of the rule is to inhibit the acquisition of information about a case, there is no basis to expand its coverage to former employees by a liberal interpretation.

Interpretation and application of DR 7-104(A)(1) in connection with represented entities occurs more frequently in substantive case law than in disciplinary opinions. Parties in litigation seek assistance of the court to control discovery or to exclude evidence based on allegedly impermissible contact with the party's current or former employees. OSB Formal Op. No. 1991-80 has provided guidance to the U.S. District Court for the District of Oregon in at least two cases. In Savage v. Northern Automotive Corp. (CV 94-1418-RE), the defendant sought to enjoin plaintiff's counsel from contacting current employees of defendant. Defendant argued that its senior assistant managers and managers in approximately 600 stores throughout the country were 'parties' to the litigation with whom ex parte contact was prohibited by DR 7-104(A)(1). The court denied the defendant's motion on the ground that the subject employees, although designated as 'management' employees, did not have legal authority to bind the corporation and so were not part of 'corporate management' for purposes of making plaintiff's contact with them improper.

In Brown v. State of Oregon, 173 FRD 265 (D. Or. 1997),4 defendant objected to plaintiff's informal interviews of current and former employees of the Department of Corrections in a case alleging hostile work environment. Defendant contended that the conduct of all current employees of the Dept. of Corrections was at issue because their observations of the alleged harassment were relevant to whether defendant had notice of the hostile environment. The court disagreed, holding that current non-management employees who were only witnesses to and not participants in the alleged harassment could be interviewed informally about the conduct of other employees. The court also rejected defendant's argument that former employees of the Department of Correction now working for another state agency should be considered current employees. The court held that agencies of the state are treated as separate entities; conduct occurring in one is not imputed to another and knowledge of one is not imputed to another. Accordingly, an employee who transfers from one agency to another is to be treated as a former employee of the first agency.

Although courts certainly take differing approaches and reach different results, a common theme running through the cases is the balancing of one party's access to discovery against concepts of fairness to the other party. In Andrews v. Goodyear Tire & Rubber Co., 191 FRD 59 (D. N.J. 2000), the plaintiff's lawyer had contacted one of defendant's 'zone managers' to inquire about working conditions at a plant. The court held that nothing in New Jersey's Rule 4.2 prohibited a lawyer from approaching a management-level employee on an ex parte basis to determine if the employee is in the organization's control group or otherwise deemed represented so as to be off limits for an interview. If a lawyer does not 'know' that a person is represented, either by individual counsel or by virtue of being a member of the litigation control group, the lawyer can communicate about the subject of the representation to ascertain whether the person is in fact represented. Requiring lawyers to ascertain representation prior to any contact would eviscerate the objective of the rule, which is to place out of reach only those persons who constitute the entity's litigation control group.

A narrow interpretation of Rule 4.2 was also rejected in Calloway v. DST Systems, Inc., 83 Fair Emp. Prac. Cases (BNA) 1608 (W.D. Mo. 2000). The court held that it was not improper for plaintiff's lawyer to conduct an ex parte interview with the plaintiff's former supervisor who was not responsible for the alleged wrongful termination and who now held a nonsupervisory position in the company. At the time of the interview, the witness was neither a managerial employee, an employee whose conduct could be imputed to the employer, nor one whose statements might operate as admissions against the employer.

By contrast, the 10th Circuit upheld the disqualification of a plaintiff's lawyer who communicated directly with plaintiff's direct supervisor and with one of defendant's operations supervisors about plaintiff's claims for overtime pay. Weeks v. Independent School District No. 1-89, 230 F3d 1201 (10th Cir. 2000). Plaintiff contended that the supervisors were only low-level employees with no authority to make binding management decisions for the school district. The court held that an employee's classification under labor law as a supervisor or support employee does not determine the applicability of Rule 4.2. Rather, the test refers to agency principles and asks whether the employee has management 'speaking authority' such that the employee can bind the employer in a 'legal evidentiary sense.' The supervisors in question had some managerial responsibility for overtime issues and their testimony could be used as evidence against the employer, making them off limits under Rule 4.2.

In G-I Holdings Inc. v. Baron & Budd, 199 FRD 529 (S.D. N.Y. 2001), the plaintiff was prohibited from continuing ex parte interviews with former employers of three personal injury law firms to prevent inadvertent disclosure of confidential client information. The defendants were accused of inundating asbestos manufacturers and the courts with thousands of meritless cases, and with suborning perjury in connection with those cases. Plaintiff's investigators interviewed former support staff of the defendant law firms to inquire about how litigation documents were prepared, how litigants were prepared for depositions and how settlement allocations were made. The court recognized that a litigant's lawyer generally has a right to interview the opposing party's former employees. However, upon balancing the hardships, the court concluded that the burden of circumscribed fact-finding was outweighed by the potential breach of the attorney-client privilege between the defendants and their clients.

Rule 4.2 has also been construed to prohibit lawyers from contacting employees of a represented corporation in an attempt to gather damaging statements that could be offered as admissions against the corporation. Midwest Motor Sports Inc. v. Arctic Cat Sales, Inc., 144 F.Supp. 2d 1147 (D.S.D. 2001) was a franchise dispute. The defendant's lawyers hired an investigator to visit plaintiff's showroom and that of another franchisee, posing as a customer, and inquire about defendant's products, sales and service. The investigator secretly tape recorded his conversations with plaintiff's salesman. In sanctioning the defendant and excluding the investigator's evidence, the court focused on the prohibition against ex parte contact with a current employee whose statements are offered against the corporation as an admission. This aspect of the contact limitation is intended to prevent lawyers from trying to get corporate employees to make damaging statements that constitute admissions under the rules of evidence. The court held that Rule 4.2 must be interpreted in light of the hearsay rules to prevent unfairness to opposing parties. Regarding the investigator's misrepresentation of his identity and his surreptitious recording, the court noted that, while not illegal in South Dakota, 'it is, however, ethical for an attorney or his investigator or other agent to record a conversation without the other party's knowledge or consent because such conduct involves deceit or misrepresentation.'5

Clearly, DR 7-104, MR 4.2 and existing ethics opinions do not provide definitive answers to every question that arises about contacting employees of represented entities. As the courts have done in the representative cases discussed herein, lawyers must engage in a case-by-case analysis of the facts to determine whether or how the rules apply, not only to avoid violating the disciplinary rules, but also to avoid the substantive impact a violation might have on a client's case.

ENDNOTES
1. There are some exceptions to this strict liability prohibition, but they are not relevant to this discussion.
2. Of course, if the former employee is a current director or officer, then DR 7-104 would apply.
3. ABA Model Rule 4.2 does not apply to a lawyer acting in the lawyer's own interests and does not have an exception for communications required or authorized by a written agreement. The ABA Model Rules have been adopted in approximately 40 jurisdictions, often with modifications. Lawyers are reminded to review carefully the wording of the rules in effect in each jurisdiction in which the lawyer is admitted and practices.
4. This case is mentioned in OSB Formal Op. No. 1998-152 and was, in fact, the inquiry that initiated the formal opinion.
5. OSB Formal Op. No. 1999-156 concludes that tape recording without the other person's knowledge or consent consistent with applicable law is not unethical provided the lawyer doesn't engage in 'conduct which would affirmatively lead an individual to believe that no recording would be made.' In Midwest the deceit was the investigator's misrepresentation of his identity and purpose in asking the questions. See also, In re Gatti, 330 Or 517, 8 P3d 966 (2000).