Ethical Considerations of Ex-Parte Communications with Company Employees

In the June, 2005 Aviation and Space Law newsletter, Thad T. Dameris and his associate Kent A. Radford discuss the ethical considerations that corporate lawyers face when investigations lead to conversations with current and former company employees. Imagine representing an airline or aircraft manufacturer whose aircraft was just involved in a crash. Plaintiffs' lawyers are attempting to talk to current and former company employees about the crash and the events leading up to the crash. Is opposing counsel prohibited from engaging in this behavior? The ABA Model Rules of Professional Conduct speak to this situation. In representing a client, a lawyer shall not communicate about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in this matter, unless the lawyer has the consent of the other lawyer or authorized to do so by law or a court order. [ABA Model Rules of Professional Conduct Rule 4.2 (2002).] The purpose of the rule to provide the represented person with protection against overreaching by adverse counsel, to prevent interference into the attorney-client relationship by adverse counsel, and to reduce the likelihood a represented person will inadvertently disclose confidential information or other information that may harm his or the company's interest. See ABA Formal Op. 95-396. Comment 7 explains how this rule applies to organizations. The anti-contact rule applies to all employees who supervise or direct the company's lawyers. The rule also applies to employees who regularly consult with the company's lawyers about the matter at issue and to employees whose acts or omissions can be imputed to the company for criminal or civil liability purposes. See Rule 4.2, Comment 7. The ABA has explained that when a company is known to be represented with respect to a particular matter, the bar applies only to communications with those employees who have managerial responsibility, those whose acts or omissions may be imputed to the organization, and those whose statements may constitute admissions by the organization with respect to the matter in question. ABA Formal Op. 95-396. This interpretation makes clear that a broad spectrum of company employees are covered. Notably, the anti-contact rule does not prohibit communications with former employees of the company. See ABA Formal Op. 91-359; ABA Formal Op. 95-396; see also H.B.A. Management v. Estate of Schwartz, 693 So.2d 541, 545-46 (Fla. 1997). While there are limits to the anti-contact rule, it provides strong protections to those covered. For example, the rule applies even if a covered employee initiates the contact. The rule also applies if a covered employee consents to an improper communication initiated by opposing counsel, but his counsel has not consented. …