RI-360

January 25, 2013

SYLLABUS

A lawyer representing a party may directly contact former employees of another party not known to be represented in the matter, including former supervisory employees provided, however, that the lawyer may not seek disclosure of any privileged communications between the former employee and the organization's counsel that occurred while the individual was employed by the company and may not state or imply that she or he is disinterested in the matter.

No provision of the Michigan Rules of Professional Conduct creates either an obligation that the lawyer notify the opposing party's lawyer of the contact or a right for the opposing party's lawyer to be present at the lawyer's interview of the former employee.

References: MRPC 4.2, 4.3; R-2; RI-44; RI-120; ABA Formal Op 91-359

TEXT

An attorney for a party to a potential legal proceeding asks whether (1) an attorney may contact a former supervisory employee of an organization to conduct an ex parte interview with the employee and (2) if the interview request is granted, whether the organization's attorney has a right to be present at the interview. The requesting attorney does not know whether the former employee had any conversations or attended any meetings with the organization's attorneys regarding the subject matter of the investigation while employed there. The requesting attorney believes that the former employee was likely involved in the alleged unlawful conduct. Inquirer knows that the organization is represented by counsel in the matter and necessarily assumes that the former employee is not independently represented by counsel as to the matter.1

The applicable rule is MRPC 4.2, the text of which provides as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The primary purposes of the rule are "protection of the represented person against over-reaching by adverse counsel," "safeguard[ing] the lawyer-client relationship from interference," and preventing the inadvertent disclosure of privileged information. ABA Formal Ethics Op 95-396 (1995); Smith v. Kalamazoo Ophthalmology, 322 F Supp 2d 883, 888 (WD Mich, 2004). We assume that the organization is considered to be a represented party under Rule 4.2; the question, then, is whether the former employee should be treated as a constituent of the organization and encompassed within the scope of the organization's representation, such that the former employee is protected as a represented party under the Rule. In the case of an organizational party, commentary to MRPC 4.2 provides that the Rule "prohibits communications by a lawyer for one party concerning the matter in representation 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 for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization."2 The question then becomes whether the former employee is treated as a represented person for purposes of the Rule.

Although several prior ethics opinions—R-2 (1989) 3, RI-44 (1990), and RI-120 (1992)—are relevant to the Committee's consideration of this question, none involves a former employee who had managerial responsibilities. In R-2, which concerned the conduct of lawyers in a malpractice action already in litigation, the Committee concluded that, as to former employees, plaintiff's counsel may seek to interview them so long as counsel complies with MRPC 4.3, a conclusion consistent with the holdings of both the Eastern and Western Districts of Michigan. See Valassis v. Samelson, 143 FRD 118 (ED Mich, 1992); Smith v. Kalamazoo Ophthalmology, 322 F Supp 2d 883 (WD Mich, 2004). See also Cmt 7 to ABA Model Rule of Professional Conduct 4.2; Hazard and Hodes, The Law of Lawyering (3rd ed),§38.7, pp 38-14–38-15. Further, as noted in Smith, the Committee also concluded that any such interview "may not inquire into areas subject to the attorney-client privilege or work-product doctrine." Smith, 322 F Supp at 890.4

In RI-44, the Committee agreed that counsel for an individual who had been discharged from employment could, inter alia, ethically contact former employees of the prospective defendant in the course of determining whether a viable cause of action existed. As to the imputation issue, the Committee stated:

In a case brought for wrongful termination, the employees' statements of alleged sexual harassment, if true, are not imputed to the company, and are not an admission of the company. If the statements are untrue, they may be imputed to the company to the extent the company has acted in reliance on those statements without appropriate confirmation or investigation. If the employees' statements on the time at which the allegations were made to the company are truthful, it may at most be an admission against the interest of the company. If the statements on the time are untruthful, it would not be an admission or imputed to the organization. It would seem in a wrongful termination cause of action, the employees whose actions or omissions are imputed to the company, or whose statements constitute an admission, are those employees who acted upon the information from the clerical employees, i.e., those employees who terminated the client. [RI-44, p 1-2.]

In RI-120, the Committee reaffirmed the conclusion reached in R-2 as to direct contact with former organizational employees, noting that it was consistent with the opinion expressed in ABA Formal Opinion 91-359 (1991) that reads as follows: "the text of the Rule does not" prohibit direct contact with former employees, and "the comment gives no basis for concluding that such coverage was intended. Especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one's case, the Committee is loath . . . to expand its coverage to former employees by means of liberal interpretation."

With respect to former employees who had managerial responsibility, some courts have construed MRPC 4.2 to embrace a broad prohibition against communication "with anyone whose testimony would be admissible against the organization as an exception to the hearsay rule," ABA/BNA Lawyers' Manual on Professional Conduct, §71:311; others have "balanced the need to discover relevant facts against the competing need to protect the attorney-client relationship," "'interpret[ing] the rule to ban contact only with those employees who have the authority to 'commit the organization to a position regarding the subject matter of representation.'" Id., citing Messing, Rudavsky & Weliky PC v. President & Fellows of Harvard College, 764 NE2d 825, 833 (Mass 2002). See also Victory Lane Quick Oil Change v. Hoss, unpublished opinion of the Eastern District of Michigan, issued March 20, 2009 (Docket No. 07-14463).

Restatement of the Law Governing Lawyers (2000), §100(2)(c), p 90, similarly separates the evidentiary test from the anti-contact test and looks to whether the employee's statement "would have the effect of binding the organization with respect to proof of the matter." The policy expressed in the Restatement grows out of the authors' belief that, because modern evidence rules make certain statements of an employee or agent admissible as exceptions to the hearsay rule and allow the organization to impeach or contradict them, employees and agents should not be deemed to be off-limits "solely on the basis that their statements are admissible evidence." Id., §100 cmte, p 94, and Reporter's Note thereto.

Application of these principles to a situation involving a former managerial agent of an entity leads us to the same conclusion. Once the employment relationship has ended, a former employee is not a person "having a managerial responsibility on behalf of the organization;" nor is such a person someone whose act or omission could be imputed to the entity, as of the time of the interview, for the person is no longer acting on behalf of the organization. Finally, a statement by a former employee is clearly not admissible as a statement of the organization, for there is no longer an agency relationship at the time the statement is made. Therefore, we conclude that an attorney for a party does not violate MRPC 4.2 by directly contacting a former employee of another party, even if the former employee had managerial responsibilities during the employee's term of employment.

If granted an interview with a former employee who had managerial responsibility, opposing counsel must not seek disclosure of any attorney work-product or privileged communications between the former employee and the organization's counsel that occurred while the individual was employed by the company, as those communications remain privileged as to the organization regardless of the fact that the employee is no longer employed by the organization.5 In addition, Rule 4.3 requires that the lawyer neither state nor imply that the lawyer is disinterested, and when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, that the lawyer make reasonable efforts to correct the misunderstanding.

With respect to the inquirer's second question, because we have concluded that a former employee of an organization is not represented by the lawyer representing the organization for purposes of Rule 4.2, there is no obligation to inform the organization's lawyer of the interview. The opposing lawyer also has no corresponding right to be present at the interview, outside of formal discovery processes.6

1 Clearly, if a lawyer seeking the interview learns, upon contacting a party, that he or she is personally represented by counsel in the matter, MRPC 4.2 precludes communication with the party unless the lawyer seeking the interview has the consent of the other lawyer or is authorized by law to do so.

2 Although this language states a proscription, only the language contained in the rule itself governs what a lawyer is required to do or constrained from doing. See MRPC 1.0(c) which provides: "The text of each rule is authoritative. The comment that accompanies each rule does not expand or limit the scope of the obligations, prohibitions, and counsel found in the text of the rule."

3 The designation "R-" denotes an ethics opinion approved as a formal opinion by the State Bar of Michigan Board of Commissioners.

4 R-2 notes that Upjohn Co. v. United States, 449 US 383, 101 S Ct 677, 66 L Ed 2d 584 (1981), holds that, as a matter of federal common law, communications between lower level corporate employees and organization counsel can be protected by the attorney-client privilege. It is also critical to note that such employees' statements are privileged only as to the corporation; in the absence of an attorney-client relationship between corporate counsel and the individual employee, the corporation's privilege does not extend to or protect the employee whose statement has been given to company counsel.

5 See MRPC 4.4.

6 If the organization's attorney becomes aware of the request, MRPC 3.4(f) does not permit him or her to request that a former employee or agent of the organization refrain from voluntarily giving relevant information to another party. While the rule permits the organization's attorney to make such a request as to an employee or agent of the organization, the determination as to whether the individual is an agent of the organization looks to MRE 801(d)(2)(D), that is, whether the statement would be one "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Since the individual whose statement is sought is a former employee and, therefore, no longer an employee or agent of the corporation, Rule 3.4(f) does not permit the organization's attorney to ask the individual to refrain from being interviewed by opposing counsel.