United States: Think Twice About Contacts with Another Lawyer´s Client

Lawyers often do not think about the rule against contacts with represented persons. Yet mistakes can be serious.

Allegations about such contacts result in disciplinary proceedings. Courts can order the production of all notes and memoranda by a lawyer concerning a particular contact. Evidence obtained as a result of the contact may be kept out at trial. Counsel may be disqualified.

The lawyer who is aware of the details of the rule governing contacts with represented persons will not miss the opportunity to use the rule against the other side — and to avoid falling victim to the rule.

• Your company has a dispute with another company. A senior official of the other company, who is a friend of yours, starts to talk with you about the dispute. May you discuss the matter with your non-lawyer friend?

• Your company is under investigation by a grand jury. You are told that prosecutors have been contacting employees at home and questioning them about matters related to the case. Is the government allowed to do this?

• Your company is suing another company. A disgruntled ex-employee of the other company calls you and offers juicy testimony. Can you listen?

ABA Model Rule 4.2 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 by law to do so." In jurisdictions following the ABA Model Code of Professional Responsibility, essentially the same rule is in DR 7-104(A)(1). If a corporation is represented by an attorney in a matter, corporate employees who meet certain characteristics are considered "represented persons" and are off limits to opposing counsel. See Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996). The employees who may not be contacted are as follows:

• Employees who have "managerial responsibility" in the organization.

• Employees whose acts or omissions relating to the matter in litigation may be imputed to the organization for purposes of liability.

• Employees whose statements may constitute admissions on the part of the organization.

Thus, in the first example above, Rule 4.2 would likely prohibit an informal conversation with a senior official of your adversary. See Carter-Herman v. Philadelphia, 897 F. Supp. 899 (E.D. Pa. 1995). He or she has managerial responsibility. Also, his or her acts or omissions relating to the case might be imputed to the organization, and his or her statements might constitute admissions on the part of the corporation. A caveat: the exact description of the employees who are off-limits varies widely from jurisdiction to jurisdiction. Contacts forbidden in some jurisdictions are permitted in others. For example, New York allows contacts somewhat more expansively than other jurisdictions. Niesig v. Team I, 76 N.Y.2d 363 (1990).

It is no defense to a violation of the rule that the lawyer did not initiate the prohibited conversation. It is the lawyer’s responsibility to be aware of the rule and to comply with it.

In criminal cases, prosecutors have more freedom to contact corporate employees than private attorneys have in the civil arena. A number of courts have held that prosecutors may contact an employee of a represented company during the investigative stage of proceedings, before indictment, even if the employee would be off limits under the Rule 4.2 standards. One rationale is that the government’s interest in investigating crime outweighs the interests protected by Rule 4.2. United States v. Balter, 91 F.3d 427 (3d Cir. 1996) (collecting cases).

Thus, in the second example given above, many jurisdictions would permit prosecutors to contact employees during the preindictment stage of an investigation of a corporation even if, for example, the employee had managerial responsibility. In recent years, however, some courts have retreated from this position, imposing restrictions on preindictment contacts by the government. United States v. Talao, 222 F.3d 1133, 1139 (9^th Cir. 2000); see also United States ex rel. O’Keefe v. McDonnell Douglas, 961 F. Supp. 1288 (E.D. Mo. 1997), aff’d 132 F.3d 1252 (8^th Cir. 1998).

Throughout the 1990s, the Department of Justice ("DOJ") took an absolutist position in this debate. DOJ argued that its lawyers were not bound by state ethics rules, such as Rule 4.2. DOJ went so far as to promulgate regulations that would have allowed it to contact represented persons freely. Congress, however, disagreed with DOJ’s view and passed legislation providing that "[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State." 28 U.S.C. § 530(B) (1998). This new statute will operate to limit contacts by government prosecutors with represented persons, but not eliminate them altogether because, in some jurisdictions, Rule 4.2 is interpreted to permit such contacts in some circumstances.

Former employees of a represented corporation enjoy the lowest level of protection under Rule 4.2. They are generally considered available for interview by all parties to litigation. See ABA Formal Op. 91-359 (1991); Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984). They are not considered "represented persons" under the rule because they no longer work for the corporation that has retained counsel. Thus, in the third example provided above, you may take the call from the ex-employee. Be careful if the ex-employee is a former attorney or if he or she tries to reveal attorney-client confidences or attorney work product – these topics are off limits although conversation about nonprivileged subjects may occur. Also keep in mind that a few jurisdictions limit contacts with high-ranking employees after they have left the corporation. As always, check the law of the relevant jurisdiction closely.

It pays to proceed with caution in this area. Mistakes can cost lawyers and clients. Being aware of the intricacies of Rule 4.2 can help a lawyer to take advantage of the mistakes of the other side – and to avoid those same embarrassing and damaging mistakes.

Reprinted with permission of the American Corporate Counsel Association as it originally appeared: William W. Taylor III and Norman L. Eisen, "Think Twice about Contacts with Another Lawyer’s Client," Zuckerman Spaeder’s Outside Counsel, Winter 2001: 5–6. Copyright © 2001 by Zuckerman Spaeder and the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visit www.acca.com.