RI-120

March 6, 1992

SYLLABUS

Unless organization counsel consents, a lawyer may not contact a current manager or lower level employee of a defendant organization if the employee's acts or omissions in connection with the matter may be imputed to the organization or if the employee's statement may constitute an admission on the part of the organization.

In an action alleging the intentional tort exception to the Workers' Disability Compensation Act, which requires that the employer commit a deliberate act and specifically intend there be an injury, plaintiff's counsel may contact lower level current and former employees of the employer defendant without consent of defense counsel unless the acts or omissions of the particular lower level employee plaintiff's counsel wishes to contact can impute the requisite "willfulness" to the corporation defendant, or statements of the lower level employee could constitute an admission of the corporation with regard to the requisite "willfulness" of the claim alleged.

References: MRPC 4.2; R-2; RI-44; MCL 418.131, MSA 17.237; ABA 91-359; Niesig v. Team I, 76 NY2d 363, 558 NE2d 1030 (NY Ct App 1990); Smith v. General Motors Corp, 192 Mich App 652 (1992).

TEXT

A lawyer who represents the personal representative of an individual killed in a workplace accident is contemplating a lawsuit against the decedent's employer under the "intentional conduct" exception to the exclusive remedy provisions of the Workers' Disability Compensation Act. The lawyer wishes to contact present and former employees of the corporate defendant without the consent of defense counsel, including supervisory level employees.

MRPC 4.2 and relevant Comment state:

"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.

"Comment.

". . .

"In the case of an organization, this 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." Emphasis added.

Formal Opinion R-2 addressed whether plaintiff's counsel could contact current and former employee nurses of defendant hospital who provided care to the plaintiff when the accident giving rise to the claim occurred, without consent of hospital counsel. The opinion reasoned that since the nurses who were still employees of the hospital were sought regarding the care they rendered to the plaintiff at the time of the injury, their statements would constitute admissions and their acts could be imputed to the organization; current nurses could not be contacted without consent of organization counsel.

Similar reasoning was applied in RI-44. In that opinion a client was fired from a company for alleged sexual harassment of clerical workers, one of whom had since left the company. A former clerical employee had told the client that, prior to the clerical employees' providing individual statements of sexual harassment, the clerical employees were advised that the client's employment had already been terminated. The client's lawyer wished to contact the current and former clerical employees in determining the validity of a wrongful discharge claim, without consent of company counsel. The Committee reasoned:

"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."

Therefore, in determining whether a lower level current employee may be contacted without consent of organization counsel, the lawyer must determine whether the employee's acts or omissions in connection with the matter may be imputed to the defendant, or whether statements of the employee constitute an admission of the defendant.

In Smith v. General Motors Corp, 192 Mich App 652 (1992), the court explained that to trigger the "intentional tort" exception to the Workers' Disability Compensation Act, MCL 418.131; MSA 17.237, "there must be a deliberate act by the employer and a specific intent that there be an injury. Specific intent is established if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge . . . . To support such conclusions, a plaintiff must be able to allege a specific danger known to the employer that was certain to result in an injury and must allege that the employer required the plaintiff to work in the face of that danger." The court noted that the statute requires more than knowledge or notice, but a showing of deliberation and willfulness.

"While a state of mind may be imputed to a corporation, such a state of mind cannot reasonably be inferred from imputed notice of disconnected facts . . . ."

The court found that the evidence presented supported only the conclusion that defendant's failure to correct this particular machine resulted from a misunderstanding, not from a deliberate act, and upheld summary judgment in favor of defendant.

In this inquiry, unless the acts or omissions of the particular lower level employee plaintiff's counsel wishes to contact can impute the requisite "willfulness" to the corporation defendant, or statements of the lower level employee could constitute an admission of the corporation with regard to the requisite "willfulness" of the claim alleged, plaintiff's counsel is not prohibited by MRPC 4.2 from contacting the lower level employee without consent of corporation counsel.

With regard to contacting former employees, R-2 applied the same test, i.e., whether the former employees' statements constituted an admission of the company or whether their acts or omissions could be imputed to the company. With regard to nurses who were no longer employees of the hospital, have no continuing relationship with the hospital, and are not privy to any confidential information, the opinion held that they could be contacted without consent of hospital counsel, as long as that contact was made pursuant to MRPC 4.3.

Since the issuance of R-2 in April, 1989, there have been a number of ethics opinions and cases which address the issue of contacting former employees of organization parties. ABA Op 91-359, issued March 22, 1991, suggests that ABA Model Rule 4.2 was never intended to address contact with former employees, and does not prohibit those contacts. At least three jurisdictions have adopted the ABA declaration [Polycast Technology Corp v. Uniroyal Inc, 129 FRD 621 (DC SNY 1990); Dubois v. Gradco Systems Inc, 136 FRD 341 (D Conn 1991); Shearson Lehman Brothers Inc v. Wasatch Bank, 139 FRD 412 (D Utah 1991)]; and one jurisdiction has rejected it [Public Service Electric and Gas Co. v. Associated Electric & Gas Insurance Services Ltd, 745 F Supp 1037 (DC NJ 1990), holding that the policy considerations expressed in the Comment to Rule 4.2 apply equally to current and former employees; Curley v. Cumberland Farms Inc, 134 FRD 77 (DC NJ 1991)].

Prior to the issuance of the ABA Opinion, courts which addressed the propriety of direct contacts with former employees without consent of organization counsel employed a panoply of tests. Some courts focused upon whether the former employee is to be questioned about the employee's own action or inaction in connection with the matter, and if so, the contact is prohibited absent consent of organization counsel. Triple A Machine Shop Inc v. State, 261 Cal Rptr 493 (1989); Frey v. Dept of Health and Human Services, 106 FRD 32 (EDNY 1985); Pennsylvania Op 90-142 (1990).

Some courts have based a decision on whether the former employee maintains ties to the organization, was privy to confidential information concerning the litigation when they were formerly employed, or whether while employed with the organization the former employee was in a position to offer opinions that formed the basis of any final decision regarding the litigation matter. See, Fair Automotive Repair Inc v. Car-X Service Systems Inc, 471 NE2d 554 (Ill 1984); In re Investigation of FMC Corp, 430 F Supp 1108 (1977); American Protection Insurance Co. v. MGM Grand Hotel-Las Vegas, Inc., 1986 WL 57464 (D Nev 1986); Neisig v. Team I, 76 NY2d 363, 558 NE2d 1030 (NY Ct App 1990); Wright v. Group Health Hospital, 691 P2d 564 (Wash 1084); Florida Op 88-14 (1989); West Virginia Op 87-01 (1987).

The inquirer refers to Domako v. Rowe, 438 Mich 347 (1991), and Niesig v. Team I, 76 NY2d 363, 558 NE2d 1030 (NY Ct App 1990). We do not believe that either decision justifies a departure from the analysis contained in R-2.

Domako involved the issue of whether the physician-patient privilege was violated when a defense lawyer conducted an ex-parte interview with one of the Plaintiff's treating physicians. The court ruled that there was no violation of the physician-patient privilege, since the plaintiff had waived the privilege by bringing a personal injury lawsuit and failing to object to the production of medical records. We find that case inapplicable to this inquiry.

The Niesig case involved the scope of the term "party" under New York's Code of Professional Responsibility DR 7-104(A)(1), the counterpart to MRPC 4.2. The Court took note of a variety of different tests used by various courts and bar associations in defining such a middle ground, and concluded that the rule would prohibit unauthorized contact with organizational employees whose acts or omissions in the matter at issue would be binding on the organization, or imputed to the organization for purposes of liability, as well as those employees involved in implementing the advice of the organization's counsel. This is the same test suggested by the Comment to MRPC 4.2.

We do not believe it necessary in this case to decide whether the ABA interpretation of the applicability of ABA Model Rule 4.2 to contacting former employees of organizational parties should be adopted.