Another
issue that may arise in employment matters is whether the plaintiff’s lawyer may contact a former employee of the corporate defendant, particularly a management employee. The
answer will depend on the facts and circumstances of the particular situation, but there are some
rules that guide a lawyer in determining whether such contact may be made. The
Model Rules of Professional Conduct 4.2 bars a “lawyer from communicat[ing] about the subject of the representation with a
party the lawyer knows to be represented by another lawyer in the matter.” Further, there is a prohibition against “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." Comments to
Rule 4.2.
The
ABA Committee on Ethics and Professional Responsibility has
issued a formal
opinion that addresses the
issue of whether communications with former employees may occur. See,
Contact with Former Employee of Adverse Corporate Party, ABA Formal Op. 91-359 (1991)... The Committee noted that the concerns reflected in the
Rule 4.2 and its commentary could survive the termination of the employment relationship. However, the Committee opined that "a lawyer representing a client in a matter adverse to a corporate
party that is represented by another lawyer may, without violating
Model 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."
Id. at 3.
Further, according to a majority of the
courts, “in general,
Rule 4.2 does not
bar ex parte attorney contacts with an adversary's former employees who are not themselves represented in the matter.” See
Olson v. Snap Prods., Inc., 183 F.R.D. 539, 544 (D.Minn.1998), citing
United States ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F.Supp. 1288, 1295 (E.D.Mo.1997), aff'd, 132 F.3d 1252 (8th Cir.1998);
Jenkins v. Wal-Mart Stores, Inc., 956 F.Supp. 695, 697 (W.D.La.1997);
Orlowski v. Dominick's Finer Foods, Inc., 937 F.Supp. 723, 728 (N.D.Ill.1996);
Concerned Parents of Jordan Park v. Housing Auth. of St. Petersburg, 934 F.Supp. 406, 408 (M.D.Fla.1996);
Terra Int'l, Inc. v. Mississippi Chem. Corp., 913 F.Supp. 1306, 1315 (N.D.Iowa 1996);
Aiken v. Business and Industry Health Group, Inc., 885 F.Supp. 1474, 1476 (D.Kan.1995); see also, generally, Benjamin J. Vernia,
Right of Attorney to Conduct Ex Parte Interviews with Former Corporate Employees, 57 A.L.R.5th 633 (1998). (citation omitted). But, the lawyer must be careful, as an “attorney's discussions with former members of an organizational
party-opponent's management could intrude upon
privileged matters, which would not be permissible under
Rule 4.2.” Olson, 183 F.R.D. at 545.
A lawyer must also be mindful of
Model Rules of Professional Conduct Rule 4.4, which provides that “[i]n representing a client, a lawyer
shall not use means that have no substantial purpose other than to embarrass, delay, or
burden a third person, or use methods in obtaining
evidence that violate the legal rights of such a person.” At the very least, if the lawyer determines that he/she may proceed with the contact with the former manager, the lawyer must take adequate measures to prevent the disclosure of
privileged information. See
Arnold v. Cargill, 2004 WL 2203410 at *9-10(D. Minn. 2004) (unpub. op.) (
sanctioning a lawyer for failure to protect the corporate opponent’s
privileged information).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
