By Abbe F. Fletman and Caroline M. Austin1
Lawyers representing plaintiffs in employment-related disputes often find it would be helpful to obtain information from current or former employees. As a practical matter, a lawyer would prefer to interview the past or present employees without the need to inform or include opposing counsel. The reason of course is obvious: the lawyer would rather determine without the knowledge of opposing counsel whether the employee has anything positive to contribute to her case. If the answer is yes, the lawyer can depose the employee, or simply subpoena the employee for trial. If the interview results in negative information, no one other than the interviewing lawyer need know.
This outline examines the propriety of an employee's lawyer contacting an adverse employer's current or former employees.
Rule 4.2 of the Rules of Professional Conduct is the starting point of any analysis of contacts with past or present employees. The rule prohibits contacts between a lawyer and a party who is represented by a lawyer concerning the matter in controversy. Rule 4.2 provides:
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.
Rule 4.2 of the Pennsylvania Rules of Professional Conduct.2
The primary purpose of Rule 4.2 is to protect represented persons against overreaching by adverse counsel, to safeguard the client-lawyer relationship from interference by adverse counsel and to reduce the likelihood that clients will disclose privileged or confidential information. Hanntz v. Shiley, Inc., 766 F. Supp. 258, 265 (D.N.J. 1991); Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899, 903 (E.D. Pa. 1991).
The Comment to Rule 4.2 explains who is a represented "party" when an organization is involved in the litigation. The Comment provides:
In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having 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 for purposes of civil or criminal liability, or whose statement constitutes an admission on the part of an organization.
Comment to Rule 4.2.
Thus, when the other party is an organization, the attorney is explicitly prohibited from communicating with three categories of current employees of the organization: 1) persons with managerial responsibilities; 2) individuals whose act or omission may be imputed to the organization; and 3) persons whose statements constitute an admission by the organization. Courts have struggled with whether former employees of an organization fall into any of these categories, thereby restricting an attorney's ability to communicate with them.
A.COMMUNICATIONS WITH CURRENT EMPLOYEES
1) Managerial Employees
The case law defining a managerial employee under Rule 4.2 states that a managerial employee is a person who supervises a large number of subordinates and who exercises significant amount of individual discretion to carry out his or her duties. See, e.g., Belote v. Maritrans Operating Partners, L.P., Civ. A. No. 97-3993, 1998 U.S. Dist. LEXIS 3571, at *6-7 (E.D. Pa. Mar. 20, 1998) (captain of barge with responsibility for and authority over all persons on board is a managerial employee); Carter- Herman v. City of Philadelphia, 897 F. Supp. 899, 904 (E.D. Pa. 1995) (police lieutenant is managerial employee, but a police sergeant is not); Berryman v. Consolidated Rail Corp., Civ. A. No. 94-3668, 1995 U.S. Dist. LEXIS 12768, at *5 (E.D. Pa. Aug. 28, 1995) (railroad foreman in charge of a group of employees is a managerial employee).3
Pennsylvania and New Jersey courts have held that only current employees of an organization constitute managerial employees. Because former managerial employees lack an existing agency relationship with the organization, they cannot bind the organization. Anderson v. United States, 417 U.S. 211, 218-19 n. 6 (1974); Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899, 902-03 (E.D. Pa. 1991); Hanntz v. Shiley, Inc., 766 F. Supp. 258, 266-67 (D.N.J. 1991).
2) Employees whose acts may be imputed to the organization
The Comment to Rule 4.2 also defines a represented party as "any other person" whose act or omission in connection with the plaintiff's injury can be imputed to the defendant organization. Courts uniformly agree that this category of persons applies to the current employees of an organization and they have developed four different tests used to determine the appropriateness of an opposing counsel's informal communications with current employees.4 However, as discussed in more detail below, courts are divided as to whether this category of persons includes former employees of an organization, in addition to current employees.
3) Employees whose statements may be an admission of the organization
The third type of represented party for purposes of Rule 4.2 includes persons whose statements may constitute an admission on the part of the organization. The Federal Rules of Evidence provide that a statement is an admission and is not hearsay if it is offered against a party opponent and it was made by the party opponent's "agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). The exclusion from the definition of hearsay applies only to statements made "during the existence" of the employment. Fed.R.Evid. 801(d)(2)(D). Rule 801(d)(2)(D) requires that the "declarant be both authorized and acting within the scope of employment when making an admission on behalf of the principal." Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1002 n.6 (3d Cir. 1988). Thus, statements of a former employee, made after the employment ends, cannot be deemed admissions of the corporation because he or she is not hen acting within the scope of his or her authority. See Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899, 903 (E.D. Pa. 1991); Hanntz v. Shiley, Inc., 766 F. Supp. 258, 267 (D.N.J. 1991).
Under these principles, the statements of the captain of a barge regarding the condition of the deck when the plaintiff injured himself are admissions. Belote, 1998 U.S. Dist. LEXIS 3571, at *9-10; see also Garrett v. National R.R. Passenger Corp., Civ. A. No. 89-8326, 1990 U.S. Dist. LEXIS 10868 (E.D. Pa. Aug. 14, 1990) (statement of railroad defendant's employee concerning his actions on the date of the accident constitutes an admission).
B.COMMUNICATIONS WITH FORMER EMPLOYEES
Neither Rule 4.2 nor the Comment to the rule expressly refers to "former employees." Moreover, courts are in disagreement as to whether Rule 4.2 prohibits communications with former employees of an adversarial party, and whether there are any limitations on the scope of such communications.
For example, in University Patents, Inc. v. Kligman, 737 F. Supp. 325, 329 (E.D. Pa. 1990), the court held that Rule 4.2 simply does not apply to former employees and, therefore, any former employee may be contacted without notice to opposing counsel. More recently, in Pritts v. Wendy's of Greater Pittsburgh, Inc., No. GD97-3173, in the Court of Common Pleas of Allegheny County, Pennsylvania, Judge Wettick held that Rule 4.2 does not prohibit ex parte communications with any former employees of an opposing party. Judge Wettick stated that Rule 4.2 bars a lawyer from communicating with "a party the lawyer knows to be represented by another lawyer in the matter." Because a former employee who has no existing relationship with a corporate party is not a "party", the language of Rule 4.2 does not reach communications with former employees who have not retained counsel.
Likewise, in Hanntz v. Shiley, Inc., 766 F. Supp. 258 (D.N.J. 1991), the New Jersey District Court held that Rule 4.2 permits counsel to conduct interviews with any former employee of a corporate adversary. The Hanntz court reasoned that Rule 4.2's underlying policies do not justify the wholesale exclusion of former employees from the discovery process. Id. at 265-68. The Hanntz court further reasoned that the phrase in the Comment "any other person" whose acts may be imputed to the corporation does not apply to former employees, but rather should be interpreted to refer only to "other current agents of the employer." Id. at 268-69. In addition, the Hanntz court interpreted the phrase "any other person whose act . . . may be imputed to the corporation" to be based logically on agency principles, just as the other categories of a represented "party" are. Because former employees are not agents of the organization, they do not fall within the Comment's ambit. Id. at 269.
In contrast, in PSE&G Co. v. Associated Elec. & Gas Insurance Serv., 745 F. Supp. 1037, 1039 (D.N.J. 1990), the court held that Rule 4.2 prohibits any ex parte communications with former employees. The PSE&G court stated that the phrase "any other person" in the Comment to Rule 4.2 is plainly broad enough to cover certain former employees and that nothing in the Rule or the Comment indicates that this broad category should be limited to current employees. Id. at 1040. In addition, the court reasoned that prohibiting all communications with former employees is consistent with the dual purposes of Rule 4.2 of preserving the integrity of the lawyer-client relationship by prohibiting contact with a represented party and protecting privileged and confidential information of the organization. Id. at 1042. The PSE&G court further reasoned that its holding has the benefit of simplicity which serves the overall objective of the ethical rules by providing clear guidelines concerning acceptable and prohibited conduct of attorneys. Id. at 1042-43.5
Other courts have adopted a middle of the road approach, holding that Rule 4.2 may prohibit communication with former employees if they had access to confidential information or their conduct is the subject of the litigation. For example, in Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899 (E.D. Pa. 1991), the court held that there is no per se bar against contacts by opposing counsel with former employees, but that opposing counsel must refrain from soliciting information protected by the attorney-client relationship. The Action Air court stated that "while Rule 4.2 preserves the posture of the adversarial system and the attorney client relationship it should not necessarily chill the flow of harmful information [about the former employer]." Id. at 902.
Similarly, in Stabilus v. Haynsworth, Baldwin Johnson & Greaves, 1992 U.S. Dist. LEXIS 4980, (E.D. Pa. 1992), the court stated that contact with former employees should be prohibited "if there is a real or perceived risk of disclosure of confidential information protected by the privilege which is or may be damaging to the party interest." Stabilus, 1992 U.S. Dist. LEXIS 4980, at *4 (quoting Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility; Formal Opinion No. 90-142 (Dec. 7, 1990)). The Stabilus court concluded that plaintiff's counsel should not have sought an interview with the former employee at issue because there was a risk of disclosure of protected information since the former employee "was privy to communications with plaintiff's counsel for this lawsuit as he had been a key participant in the union contract negotiations and had already engaged in discussions with plaintiff's counsel." Stabilus, 1992 U.S. Dist. LEXIS 4980, at *6; see also Curley v. Cumberland Farms, Inc, 134 F.R.D. 77, 82-83 (D.N.J. 1991) (attorney may contact former managerial employees provided counsel avoids inquiries regarding information imputable to the organization).
Ultimately, Pennsylvania courts appear to have adopted a compromise between the two extreme viewpoints regarding contact with former employees. In Dillon Companies v. SICO Co., 1993 U.S. Dist. LEXIS 17450, at *14-15 (E.D. Pa. Nov. 26, 1993), the court held that a per se bar against communications with former employees was not warranted under Rule 4.2 or the case law interpreting it, but rather a case-by-case approach should be used to determine whether contact is permitted. Under the Dillon court approach, an assessment must be made of the likelihood that the contact in question will actually disclose privileged information, thereby impairing the policy underlying Rule 4.2. Id. at 15. Courts making this assessment should consider the following factors:
- 1)the positions of the former employees in relation to the issue in the suit;
- 2) whether the former employees were privy to communications between the former employer and it counsel concerning the subject matter of the litigation, or otherwise;
- 3)the nature of the inquiry by opposing counsel; and
- 4)how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.
Id. at * 15.
If these factors indicate that there is a substantial risk of disclosure of privileged information, as opposed to the risk of the adverse party obtaining information which may be damaging to the former employer's litigation position, then the attorney should provide the former employee with notice concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employer's counsel should be notified before any interview. Id. at *15-16.
The case-by-case approach adopted in Dillon was reaffirmed by Spencer v. Milton Steinman, 179 F.R.D. 484 (E.D. Pa. 1998). In Spencer, the court acknowledged the disagreement among courts within the Third Circuit regarding contact by an attorney with former employees of an adversarial party and noted that neither the Pennsylvania Supreme Court or the Third Circuit has adopted a bright-line test. The Spencer court reasoned that the Dillon factors "reflect a sensible and policy-oriented middle ground" and applied them to the case.
The American Bar Association has taken the position that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer. ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 91-359 Contact with Former Employee of Adverse Corporate Party (Mar. 22, 1991).6 In reaching its conclusion, the ABA Committee noted that neither Rule 4.2 nor the Comments to the rule purports to deal with former employees of a corporate party. Formal Opinion 91-359.7 Although the Committee recognized that persuasive policy arguments could be made for extending Rule 4.2 to cover certain former employees, the Committee stated that "the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended" [QQ]
Formal Opinion 91-359. The Committee further reasoned that "especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one's case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation." Formal Opinion 91-359.
C.OTHER CONSIDERATIONS
1.Rule 4.2's prohibition against ex parte contact applies only if the lawyer "knows" the person from whom information is represented by counsel
The lawyer is not barred from communicating with a represented party absent actual knowledge of the representation, although such knowledge may be inferred from the circumstances. A lawyer may not avoid the need to obtain consent of the opposing party's counsel by ignoring circumstances that suggest the person to be interviewed is represented concerning the matter in question. Formal Opinion 95-396 (July 28, 1995).
2.Initiation of the contact by the represented person does not negate the lawyer's need to comply with Rule 4.2
The fact that the represented person initiates communication with the lawyer does not render Rule 4.2 inapplicable or mean that the lawyer may communicate with the represented party without obtaining the consent from opposing counsel. Formal Opinion 95-396 (July 28, 1995). Rule 4.2 exempts communications if the lawyer representing the contacted person consents, but Rule 4.2 does not permit the represented person to waive the protection afforded to him or her by the Rule. Formal Opinion 95-396 (July 28, 1995); Formal Opinion 108 (1934); see also United States v. Batchelor, 484 F. Supp. 812 (E.D. Pa. 1980).
If a represented person terminates the representation, the communicating lawyer is free to communicate with, or receive communications from, the former represented person. Formal Opinion 95-396 (July 28, 1995). In such a case, the communicating lawyer's conduct would be governed by Rule 4.3 relating to Communications with Unrepresented Persons.8 Notwithstanding the requirements of Rule 4.3, the communicating lawyer would be wise to confirm whether in fact the represented person has discharged his or her counsel. Formal Opinion 95-396 (July 28, 1995).
3.Persons acting under the direction and control of a lawyer may not do what the lawyer is prohibited from doing under Rule 4.2
While it may seem obvious, since a lawyer is barred by Rule 4.2 from communicating with a represented party about the subject matter of the representation, he or she may not circumvent the prohibition by using another person acting under his or her direction to communicate with the represented party. Regardless of whether it is a civil or criminal matter, if an investigator acts as the lawyer's "alter ego", the lawyer is ethically responsible for the investigator's conduct. Formal Opinion 95-396 (July 28, 1995). Such responsibility will ordinarily arise under Rule 5.3 relating to responsibility for non-lawyer assistants.9
D.PRACTICAL TIPS WHEN FACED WITH RULE 4.2
Because of the varying court opinions regarding contact with current and former employees of an adverse party, the attorney should proceed with caution. To minimize the risks of an ethical violation, which could result in the imposition of sanctions, disqualification, or precluding the use of any information received from the current or former employee, the attorney should consider obtaining the consent of the counsel for the organization, or, in the alternative, seeking an order from court regarding the right to conduct interviews with current or former employees of the organization. At a minimum, a lawyer contacting current or former employees should identify him or herself, disclose who he or she represents, and inquire whether the person is represented. The lawyer should also consider advising the interviewee that he or she has no obligation to talk to the lawyer.
In one recent New Jersey case, Andrews v. Goodyear Tire & Rubber Co., Civ. A. No. 98-2895, United States Magistrate Judge Ronald Hedges disqualified the plaintiff's lawyer for violating Rule 4.2 because he did not make a diligent effort before contacting and interviewing an employee of defendant Goodyear Tire & Rubber Co. to determine whether the employee was represented by counsel, or was part of a litigation control group. Judge Hedges reached this decision despite the fact that the Goodyear employee did not hear from Goodyear's lawyers until after plaintiff's counsel contacted him, which would indicate that he was an unrepresented party at the time of the interview, or that Goodyear never claimed the employee was part of the litigation control group. The effect of this decision, therefore, is that a lawyer must fully investigate before interviewing the employee.
1.Abbe F. Fletman is a partner in the Litigation Department of Wolf, Block, Schorr and Solis-Cohen LLP. She concentrates her practice on commercial litigation, including in the employment context. Caroline M. Austin is an associate in Wolf, Block's Labor, Employment and Benefits Law Department. She concentrates her practice in employment litigation.
2.New Jersey Rule of Professional Conduct 4.2 is substantially the same as Rule 4.2 of the Pennsylvania Rule of Professional Conduct. It should be noted that a Special Committee was established by the New Jersey Supreme Court in In re Opinion 668 of the Advisory Committee on Professional Ethics, 134 N.J. 294, 633 A.2d 959 (1993) to review Rule 4.2. The Committee's report was published on March 20, 1995, Report of Special Committee on RPC 4.2, 139 N.J.L.J. 1161 (1995). Subsequently, Rule 4.2 was amended, effective September 1, 1996, by Order of the New Jersey Supreme Court dated June 28, 1996 to reflect the Committee's recommendations.
3.Although the Berryman court determined that plaintiff's foreman was an employee having managerial responsibility on behalf of Conrail, the court further held that plaintiff's counsel did not violate Rule 4.2 when he took the foreman's statement before initiating a lawsuit against Conrail. The Berryman court reasoned that because plaintiff's counsel communicated with the foreman before the filing of a lawsuit against Conrail, Conrail was not a party at that time and there was no proceeding in which Conrail was represented by an attorney. Berryman, 1995 U.S. Dist. LEXIS 12768, at *5-6; see also Faragher v. National Railroad Passenger Corp., 1992 U.S. Dist. LEXIS 1810 (E.D. Pa. Feb. 7, 1992) (Rule 4.2 not violated where plaintiff's counsel took statements from defendant's employees before initiating a lawsuit against defendant).
We are unaware of any cases that address the situation where, for example, counsel investigates an incident on behalf of an employer before the filing of a suit. In such a situation, a court might hold that the employer was represented and that contact with its employees by opposing counsel was improper. Thus, lawyers who conduct pre-filing interviews might be well served to ask the interviewees whether they have spoken to counsel for the employer and may consider terminating the interview if the interviewee has had such contact. 4.These four tests include the "control group" test, the blanket rule, the balancing rule, and the Niesig "Alter Ego" test. For a discussion of each of these tests, see, e.g., Ethical Considerations in Model Rule 4.2's Application to the Corporate Litigant, 20 J. Legal Prof. 267, 274-285 (1995/1996).
5. Noting that a decision of one court within a district is not binding on another court within the same district, the Hanntz court opted not to follow the PSE&G court's bright line test barring any ex parte communications with a former employee. Hanntz, 766 F. Supp. at 263 n. 5. The Hanntz court stated that the holding in PSE&G "strikes an unreasonable balance between protecting a relationship that does not exist and unduly restricting the need for litigants to have access to all relevant factual information pertinent to the case." Id. at 270.
6. The ABA Committee was specifically asked to address "whether a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without the consent of the corporation's lawyer, communicate about the subject of the representation with an unrepresented former employee of the corporate party." Formal Opinion 91-359.
7.The ABA Committee did state that because an organizational party necessarily acts through others, the concerns reflected in the Comment to Rule 4.2 -- namely preserving the proper functioning of the legal system and shielding the adverse party from improper approaches -- may survive the termination of the employment relationship. Formal Opinion 91-359. 8.Rule 4.3 of the Model Rules of Professional Conduct provides:
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.
9.Rule 5.3 of the Model Rules of Professional Conduct provides:
With respect to a non-lawyer employed or retained by or associated with a lawyer:
b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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