1 Talking to Your Adversary in New Jersey and Pennsylvania Litigation: Can an Attorney Contact the Current or Former Employees of an Adversary by Melissa Bergman Squire June 2002 Copyright 2002 Dechert. All rights reserved. Materials have been abridged from laws, court decisions and administrative rulings and should not be considered as legal opinions on specific facts or as a substitute for legal counsel.
2 xc Talking to Your Adversary in New Jersey and Pennsylvania Litigation: Can an Attorney Contact the Current or Former Employees of an Adversary? BOSTON BRUSSELS FRANKFURT HARRISBURG HARTFORD LONDON LUXEMBOURG NEW YORK NEWPORT BEACH PARIS by Melissa Bergman Squire 1 New Jersey and Pennsylvania have taken very different approaches to the question of whether an attorney may contact the current or former employees of an adversary. Guided by the Report of Special Committee on RPC 4.2, 139 N.J.L.J (1995), and the incorporation of its recommendations by an Order of the New Jersey Supreme Court to amend the pertinent rules of professional conduct, both the United States District Court for the District of New Jersey and the New Jersey courts have developed a relatively consistent body of case law, adopting the litigation control group test for both current and former employees. Working without guidance from either the Pennsylvania Supreme Court or the United States Court of Appeals for the Third Circuit, courts applying Pennsylvania law, on the other hand, have rejected a bright-line test, opting for an alter-ego or factual, case-by-case test that, practically speaking, often leaves attorneys in the dark. Ex Parte Communication With an Adversary s Employees in New Jersey PHILADELPHIA PRINCETON WASHINGTON The History of New Jersey s Rules of Professional Conduct 4.2, 4.3, and 1.13 Although the New Jersey Supreme Court adopted the Model Rules of Professional Conduct s version of Rule 4.2 with neither expansion nor modification in 1983, it declined to adopt the explanatory comments or American Bar Association commentary. See Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, (D.N.J. 2000). Similarly, it adopted Model Rules 4.3 and 1.13 with little more explanation. See id. at This lack of guidance proved troublesome when courts were asked to apply the rule to corporations or other organizations. See id. at 70. Model Rule 4.2 prohibited an attorney from contacting a represented party, but failed to provide guidance on whether or to what extent former or current employees were considered represented parties. See id. 1. Special thanks are extended to Jennifer Kraft, a 2002 Dechert summer associate, for her assistance with the research and writing of this article. Copyright 2002 Dechert. All rights reserved. Materials have been abridged from laws, court decisions and administrative rulings and should not be considered as legal opinions on specific facts or as a substitute for legal counsel.
3 After the District Court of New Jersey s controversial decision in PSE & G v. Associated Electric & Gas Ins. Servs., Ltd., 745 F. Supp (D.N.J. 1990), which articulated a bright-line test barring ex parte communications with all former and current employees, and the case law that followed, the New Jersey Supreme Court stepped in, establishing interim rules and a Special Committee on Rule of Professional Conduct 4.2 (which also reviewed Rules 4.3 and 1.13). See Andrews, 191 F.R.D. at 71-72, 74. Upon the recommendations of the Special Committee, the New Jersey Supreme Court amended Rules of Professional Conduct 4.2, 4.3, and 1.13 in 1996, and the amended Rules became effective in September of the same year. See id. at 76. Rules of Professional Conduct 4.2, 4.3, and 1.13 Today The New Jersey Rules of Professional Conduct 4.2, 4.3, and the relevant portions of 1.13, state, respectively: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, including members of an organization s litigation control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is authorized by law to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the person as to whether that person is represented by counsel. Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member or former member of an organization s litigation control group who seeks independent legal advice. N.J. R. P.C In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the person is a director, officer, employee, member, shareholder or other constituent of an organization concerned with the subject of the lawyer s representation but not a person defined by RPC 1.13(a), the lawyer shall also ascertain by reasonable diligence whether the person is actually represented by the organization s attorney pursuant to RPC 1.13(e) or who has a right to such representation on request, and, if the person is not so represented or entitled to representation, the lawyer shall make known to the Page 2 Dechert
4 person that insofar as the lawyer understands, the person is not being represented by the organization s attorney. N.J. R. P.C (a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents. For the purposes of RPC 4.2 and 4.3, however, the organization s lawyer shall be deemed to represent not only the organizational entity but also the members of its litigation control group. Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organization s legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organization s lawyer but may at any time disavow said representation. (f) For purposes of this rule organization includes any corporation, partnership, association, joint stock company, union, trust, pension fund, unincorporated association, proprietorship or other business entity, state or local government or political subdivision thereof, or non-profit organization. N.J. R. P.C New Jersey Case Law Analyzing and Applying Rules of Professional Conduct 4.2, 4.3 and 1.13 New Jersey Courts have emphasized that, in determining whether communication with an opponent-organization s employee is permissible under the New Jersey Rules of Professional Conduct, an attorney must determine whether the individual is a current or fomer employee of the organization, is part of the organization s litigation control group, or is otherwise represented by counsel. See Andrews, 191 F.R.D. at 77; Michaels v. Woodson, 988 F. Supp. 468, 471 (D.N.J. 1997); Klier v. Sordoni Skanska Construction Co., 766 A.2d 761, 768 (N.J. Super. Ct. App. Div. 2001). An attorney need not make these determinations before initiating contact. See Andrews, 191 F.R.D. at 78 (discussing Michaels, 988 F. Supp. 468). Rather, such determinations must be made prior to engaging in any substantive ex parte communications, not before initiating contact with an individual. Id. (emphasis in original); contra McCarthy v. SEPTA, 772 A.2d 987, 993 (Pa. Super. Ct. 2001) (interpreting comment to Rule 4.2 as instructing counsel to [make determinations] before having ex parte contact with an employee ). Dechert Page 3
5 Once an attorney establishes that the witness is not, or was not, within the litigation control group or otherwise represented by counsel, however, the attorney s ethical obligations are not over. Andrews, 191 F.R.D. at 79. The interviewing attorneys must still adhere to the requirements of Rule of Professional Conduct 4.3. See id. In other words, the attorney must avoid appearing disinterested, must clarify his or her role to avoid misunderstandings, and must exercise reasonable diligence in determining whether the interviewee is actually represented by the organization s attorney pursuant to 1.13(e) or has a right to such representation. See N.J.R.P.C The Litigation Control Group The litigation control group is defined as current and former agents and employees responsible for, or significantly involved in, the determination of the organization s legal position in the matter, whether or not in litigation.... Significant involvement requires involvement greater than merely supplying factual information regarding the matter in question. Michaels, 988 F. Supp. at 471 (quoting Report of Special Committee on RPC 4.2, 139 N.J.L.J. 1161, 1195 (1995). In crafting Rule 4.2, the Special Committee made a distinction between those employees who were involved in the subject matter of the litigation, and therefore, were not in the litigation control group, but were fact witnesses, and those employees who were involved in the legal decisions regarding the matter, and, therefore, were in the litigation control group. Report of Special Committee on RPC 4.2, 139 N.J.L.J. at This distinction furthers the goal of Rule that the status of an employee is not as important as his or her role in the organization when determining whether he or she is a member of the litigation control group. See Michaels, 988 F.Supp. at 471. By adopting the litigation control group approach, the New Jersey Supreme Court limited the number of employees that would be off-limits, clearly establishing that Rule 4.2 could not be used to shield all of an organization s employees from contact by an adversary. See Andrews, 191 F.R.D. at 78. Interestingly, this approach rejects the position taken by both the United States District Court for the District of New Jersey in PSE & G v. Associated Electric & Gas Ins. Servs., Ltd., 745 F. Supp (D.N.J. 1990), which served as the catalyst for change in the first place, and the Pennsylvania courts, which have opted for a broader test. See infra Part II. Courts applying New Jersey law have also rejected a finding of automatic representation when a member of an organization who, though not within the litigation control group, is offered representation by that organization. See Michaels, 988 F. Supp. at A company cannot impose representation on employees not within the control group without their consent, and an offer of representation does not constitute actual representation, unless and until accepted. See id. Moreover, the Michaels Court stressed that attorneys representing both the employer and its employees must ensure that such dual representation will not result in a conflict of interest contrary to Rule 1.7. See id. at 474. Page 4 Dechert
6 Current Employees Ex parte contact with a current employee of an opponent is prohibited if he or she is (1) a member of the litigation control group, as defined by New Jersey Rules of Professional Conduct; and (2) if not, he or she is otherwise being represented by counsel under Rule 4.2. See Michaels, 988 F. Supp.at 472; Essex County Jail Annex Inmates v. Trefinger, 18 F. Supp. 2d 418, 429 (D.N.J. 1998). As noted above, an attorney may make initial contact with the employee to determine if he or she is a member of the litigation control group. The attorney must also, pursuant to Rule 4.3, decide if the employee actually is represented, or is entitled to representation, by the organization s attorney. Former Employees If the person an attorney wishes to interview is no longer employed by the opponentorganization, the attorney must determine whether he or she was within the organization s litigation control group. If so, the witness is presumptively represented by the organization. See Michaels, 988 F. Supp. at 472 (citing N.J. R. P.C. 1.13). That witness, however, may disavow the representation and then, pursuant to Rule 4.2, may be interviewed by the attorney. See id. [A] former employee who was not within the litigation control group and who is not otherwise represented by counsel is not in any way restricted from communicating with an attorney adverse to her former employer. Id. Practical Suggestions and Implications An Approved Script May Assist an Attorney in His or Her Initial Contact With an Employee While an attorney need not follow an exact script when initiating a conversation with a current or former employee of his or her adversary, New Jersey courts have suggested that an attorney should attempt to adhere to a general format designed to ensure compliance with the Rules of Professional Conduct. See Andrews, 191 F.R.D. at 79. The District Court of New Jersey s decision in In re Prudential Ins. Co. of America Sales Practices Litigation, 911 F. Supp. 148, 152 (D.N.J.) was decided before the Supreme Court of New Jersey adopted the recommendations of the Special Committee, but its practical suggestions, designed to assist attorneys when making initial contact with an adversary s employees, are still relevant today. In Prudential, the parties agreed that the plaintiff would provide for court review a script that counsel would use and follow in his initial interviews with employees. See id. at 152 n.5. The Court noted that: The script should ensure that the interviewer--who should be an attorney--identifies himself, his employer, his client, the nature of and parties to the pending action and its adversarial character. The interviewer should inform the potential interviewee that she need not speak to the interviewer, that she may wish an attorney Dechert Page 5
7 and that if, during her employment with Prudential, she ever engaged in discussion with Prudential counsel regarding this lawsuit or the circumstances from which it arose, she should not reveal it. Id. See also Sullivan Assoc., LTD., v. Medco Containment Serv., Inc., 607 A.2d 1386, 1390 (N.J. Super. Ct. Law Div. 1992) (Rule 4.3 s guidelines provide that when conducting an interview with an unrepresented person, counsel should disclose his or her role, identity of client, adversarial position of client and former employer, and unwillingness to elicit privileged information). Former Employee May Disclose Confidential Communication With Organization s Attorney to His or Her New Attorney In Amatuzio v. Gandalf Systems Corp., 932 F. Supp. 113, 117 (D.N.J. 1996), the United States District Court for the District of New Jersey considered whether a former employee, who initiated an action against his former employer, may disclose to his own attorney confidential communications that occurred between himself and the corporation s lawyer while he was employed. The defendant-corporation requested disqualification of the plaintiff s attorney, arguing that he had, among other things, violated Rule 4.2. See Amatuzio, 932 F.Supp. at 113. Balancing the corporation s interest in confidential legal advice with the employee s interest in asserting his rights against his former employer, the Court held that: communications with a corporation s attorney made by, to, or in the presence of a non-attorney employee who later becomes adverse to the corporation are not protected by RPC 4.2, RPC 4.4 or the attorney-client privilege from disclosure by the former employee to his litigation counsel if (i) the litigation involves an allegation by the employee that the corporation breached a statutory or common law duty which it owed to the employee, (ii) the communication disclosed involves or relates to the subject matter of the litigation, and (iii) the employee was not responsible for managing the litigation or making the corporate decision which led to the litigation. Id. at 118. The court cautioned, however, that if the employee involved in the same situation were the former in-house counsel for the defendant corporation, the result might be different pursuant to the Rules of Professional Conduct and Rules of Professional Responsibility. See id. An Attorney Cannot Circumvent the Rules of Professional Conduct by Instructing a Non-Attorney to Conduct the Interview In Thermal Reduction Co. v. Am. Tank & Fabricating Co., 1995 U.S. Dist. LEXIS 14993, at *1 (D.N.J. Jan. 25, 1995), the defendant s expert witness, accompanied by its attorney, conducted an interview of the plaintiff s employee without notifying or Page 6 Dechert
8 receiving consent from the plaintiff corporation. Noting that the employee was currently the plant manager and held this position at the time in which the incident in question occurred, the Court found that Rule 4.2 applied. See id. at *6. Becuase it was a violation of Rule 4.2 for the non-lawyer, expert witness to interview the employee, it was a violation of Rule 5.3 for defendant s attorney to allow the interview to take place. See id. Evidence Gained Through a Professional Rules Violation Is Not Inadmissible Per Se The Superior Court of New Jersey has held that, in a civil case, the appropriate remedy for a violation of the Rules of Professional Conduct is bar discipline rather than suppression at trial of evidence wrongfully obtained. See New Jersey v. McCoy, 618 A.2d 384, 385 (N.J. Super. Ct. Law Div. 1992); Tartaglia v. Paine Webber, Inc., 794 A.2d 816, 820 (N.J. Super. Ct. App. Div. 2002). In McCoy, the defendant argued that statements the co-defendant s attorney obtained in violation of Rule 4.2 should be suppressed. See McCoy, 618 A.2d at 385. The Court distinguished evidence obtained by a private person and that obtained by the government. Private persons are provided far more leeway in their attempts to procure evidence. What may be admissible by a private party would be excluded under the Due Process Clause if state action was [sic] involved. Id. at 386. In Tartaglia, the Court refused to suppress evidence allegedly obtained by the plaintiff in violation of the Rules of Professional Conduct. See Tartaglia, 794 A.2d at The Court reasoned that the policy objectives behind the exclusionary rule are not achieved by suppressing relevant evidence in the present dispute involving private parties. Id. at 820. Ex Parte Communication With Employees in Pennsylvania The Pennsylvania Rules of Professional Conduct, a derivation of the ABA s Model Rules of Professional Conduct, became effective in 1988 by order of the Pennsylvania Supreme Court. See Charles B. Gibbons, West s Pennsylvania Discovery Practice 19.2 at 593 n.2 (West Publishing Co. 1996). Rule 4.2, identical to the Code of Professional Responsibility Disciplinary Rule 7-104(A)(1), See id., states: During the course of his representation of a client a lawyer shall not: (1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. Dechert Page 7
9 Pa. R.P.C The Rule s Comment provides, in pertinent part: 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 the 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. Pa. R.P.C. 4.2 cmt. (2000). The lack of guidance from both the United States Court of Appeals for the Third Circuit and the Pennsylvania Supreme Court concerning the application of Rule 4.2 to employees has led courts to employ the tests laid out in the plain language of Rule 4.2 and its comment, rather than distill the Rule and its comment into a single standard. Belote v. Maritrans Operating Partners, 1998 U.S. Dist. LEXIS 3571, at *4-5 (E.D. Pa. March 20, 1998). Pennsylvania Case Law Interpreting Rule 4.2 as Applied to Current Employees Adopting the Comments to Rule 4.2, Pennsylvania courts have consistently held that an attorney is barred from conducting an ex parte interview with an adversary s current employee where such employee: (1) has managerial responsibility; (2) is one whose acts or omissions in connection with the matter at issue can be imputed to his or her employer; or (3) may make an admission on behalf of his or her employer. See e.g., Belote v. Maritrans Operating Partners, 1998 U.S. Dist. LEXIS 3571 (E.D. Pa. 1998); McCarthy v. SEPTA, 772 A.2d 987 (Pa. Super. 2001); Pritts v. Wendy s of Greater Pittsburgh Inc., 37 Pa. D. & C.4th 158 (Pa.Com.Pl. 1998). Managerial Employees Managerial employees have been defined to include [e]mployees who supervise a large number of subordinates and who must exercise a significant amount of individual discretion to carry out their duties. Belote, 1998 U.S. Dist. LEXIS 3571, at * 6 (citing Carter-Herman v. City of Philadelphia, 897 F. Supp. 899, 904 (E.D. Pa. Sept. 15, 1995). By way of example, in Carter-Herman, the District Court for the Eastern District of Pennsylvania was presented with the question of which employees of a police department were managerial employees, and thus off limits to the department s adversary. See Carter-Herman, 897 F. Supp. at 903. Reasoning that the ranks of Lieutenant and above exercise significant individual judgment and discretion outside of established policies and procedures, the Court found them to be managerial employees. See id. Sergeants, the police department argued, were also managerial employees because they direct a squad of officers. See id. The Court rejected this argument, and, analogizing a Sergeant to a foreman, deemed Sergeants Page 8 Dechert
10 and lower ranking officers to be non-managerial employees, as these ranks perform work under the constrains of department procedure and receive instructions from superior officers. See id. Accord Lennen v. John Eppler Machine Works Co., 1997 WL , at *2, (E.D. Pa. Sep ) (finding employee had managerial responsibility when she was referenced as officer or General Manager in the employer s memorandum and as owner in employer s complaint to Equal Employment Opportunity Commission); Lochead v. Amtrak Nat l Railroad Passenger Corp.., 1994 WL , *7 (E.D. Pa. Oct. 13, 1994) (finding employee clearly did not have managerial responsibility as reservation sales agent ). Imputed Liability The comment to Rule 4.2 also defines a party as an individual whose act or omission in connection with the plaintiff s injury can be imputed to the defendant organization. Belote, 1998 U.S. Dist. LEXIS 3571, at *7. This imputed liability does not apply to just managerial employees. Rather, a nonmanagerial employee who is not just a fact witness, but who has acted or failed to act in such a way so as to, potentially, expose his or her employer to liability may fall within Rule 4.2 s coverage. The distinction between those employees that are actors and those that are just observers is very fact specific... so there may be circumstances in which court intervention would be appropriate. Pritts, 37 Pa. D. & C. 4th at 169. One potential source of guidance, however, is the nature of or statutory basis for the underlying claim. In Belote, the plaintiff invoked the Jones Act, claiming his injuries were the result of the defendant barge and its crew, and sought to interview the captain of the barge. Belote, 1998 U.S. Dist. LEXIS 3571, at *8. The Court reasoned that, because the captain s responsibilities, such as maintenance and upkeep, were directly in issue, his acts or omissions could be imputed to his employer and so fell within Rule 4.2. See id. Similarly, in Berryman v. Consolidated Rail Corp., 1995 US. Dist. LEXIS 12768, *5 (E.D. Pa. Aug. 28, 1995), the plaintiff s claim was based on his employer s alleged failure to provide a safe workplace when he was injured on an end spring. The Court found that the plaintiff could not interview any of the employees who were doing something to the end springs at the time of the accident without first consulting the employer s attorney, because their acts might be imputed to their employer. See Berryman, 1995 US. Dist. LEXIS 12768, at *5. Admissions Unless a lawyer has the consent of the opposing counsel, the lawyer also may not contact present employees of an opposing party whose statements may constitute admissions on the part of the corporation. Pritts, 37 Pa. D. & C.4th at (quoting PBA Comm. on Prof l Legal Ethics and Prof l Responsibility, Formal Op ). An admission is a statement 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. Belote, 1998 U.S. Dist. LEXIS 3571, at *9 (barge captain s statements concerning vessel maintenance and safety procedures were within the Dechert Page 9
11 scope of his employment and, therefore, were admissions) (discussing Garrett v. Nat l R.R. Passenger Corp., 1990 U.S. Dist. LEXIS 10868, at *4 n.2 (E.D. Pa. Aug. 14, 1990) (finding admission when defendant s employee made statement about his actions on date of accident)). Pennsylvania Case Law Applying Rule 4.2 to Former Employees In applying Rule 4.2 to former employees, courts have recognized that there is no bright-line test and no guidance from the Third Circuit or Pennsylvania Supreme Court. In fact, most courts that have considered the applicability of Rule 4.2 to former employees have noted that it is unclear whether such contact falls within the scope of the rule. Dillon Co., Inc. v. The Sico Co., 1993 WL , at *3 (E.D. Pa. Nov. 24, 1993). Noting, however, that there is a risk that attorney-client confidences may be communicated by a former employee to an interviewing attorney, many Pennsylvania courts have attempted to fashion a means through which to consider the appropriateness of ex-parte communications with former employees. See id. at * 3-5. The federal courts analysis typically consists of weighing such factors as the positions of the former employees in relation to the issues in the suit; whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise; the nature of the inquiry by opposing counsel; and how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel. Dillon, 1993 WL , at *5. See also Spencer v. Steinman, 179 F.R.D. 484, 491 (E.D. Pa. 1998) (accepting Dillon factors as a sensible and policy-oriented middle ground and... apply[ing] them to inform its judgment ). If, after weighing these factors, it appears that there is a substantial risk of disclosure of privileged matters, as opposed to the risk of the adverse party learning information which might be damaging to the former employer s litigation position, then appropriate notice should be given to the former employees concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employer s counsel should be notified prior to any ex parte interview. Dillon, 1993 WL , at *5. In Spencer, the court refused to find that Rule 4.2 prohibited the communication between an attorney, Wood, and his adversary s former attorney-employee, Lawrence. See Spencer, 179 F.R.D. at 491. Wood telephoned Lawrence to ask him about a conversation that he allegedly witnessed that took place in court and off the record. See id. at 489. The Court assumed without deciding that Rule 4.2 applied to former employees and found that Wood was not seeking privileged information, but rather Lawrence s personal recollection of an event he allegedly witnessed. Id. Pennsylvania state courts also have not applied a bright-line test, but instead have relied upon opinions issued both by the American Bar Association and the Pennsylvania Bar Association. See Pritts, 37 Pa. D. & C. 4th at ; Wein v. The Williamsport Hospital & Medical Center, 45 Pa. D. & C. 4th 537, (Pa.Com. Pl. 2000). While also acknowledging that the text of Rule 4.2 arguably does not apply to former employees, the Bar opinions, and consequently the courts, weigh Page 10 Dechert
12 factors that reflect a concern for protecting communication potentially within the attorney-client privilege. In Pritts, the court stated: With respect to any unrepresented former employee, of course, the potentially communicating adversary attorney must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer s counsel are protected by the privilege (a privilege not belonging to or for the benefit of the former employee, but the former employer). Such an attempt could violate Rule 4.4 (requiring respect for the rights of third persons). 37 Pa. D. & C. 4th at 165 (quoting ABA Comm. on Ethics and Prof l Responsibility, Formal Op ). Likewise, the Wein court, relied upon the same ABA opinion, adopting the safeguards suggested by it. [E]x parte communication is allowed under the following conditions: (1) the attorney is prohibited from eliciting or using any information that may be protected by attorney-client privilege; (2) the attorney must immediately disclose his or her capacity to the former employee; (3) any request by the person contacted that his or her personal attorney, or the company s attorney, be present must be honored; and (4) the attorney should advise the person that they have the right to refuse to be interviewed, or if they wish, to be interviewed with the company s counsel present. Wein, 45 Pa. D. & C. 4th at 543 (citing ABA Comm. on Ethics and Prof l Responsibility, Formal Op ). The Pritts court noted that the Pennsylvania Bar Association had suggested virtually identical safeguards as those suggested by the American Bar Association, but refused to adopt the fourth. Pritts, 37 Pa. D. & C. 4th at The Court rejected this socalled Miranda requirement since Rule 4.2 does not extend to former employees and Rule 4.3 (providing, [w]hen the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer s role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding ) does not require that unrepresented persons be advised that they have the right to refuse to be interviewed or to be interviewed only with the company s attorney present. Id. at 167. Dechert Page 11
13 Practical Suggestions and Implications Determinations Regarding an Interviewee s Status as an Employee Should Be Made Prior to Initiating Contact The Pennsylvania Superior Court has suggested that determinations regarding a current or former employee s status must be made before contacting the employee. See McCarthy, 772 A.2d at 993. In McCarthy, the Court interpreted Rule 4.2 s Comment as instructing counsel to determine, before having ex parte contact with an employee, the position and nature of employment of that employee in regard to the possibility that a statement given by that employee and potentially admitted at trial could impute liability onto their employer. Id. Evidence Obtained Through Professional Rules Violation Generally Inadmissible Federal courts applying Pennsylvania law have refused to admit evidence obtained through a professional conduct rules violation, but have noted that the violation does not preclude the attorney from calling the employee as a witness or otherwise gathering the information through discovery. See Lennen, 1997 WL , at *3; Lochead, 1994 WL , at *7; Garrett, 1990 U.S. Dist. LEXIS Thus, courts have admitted videotaped testimony, videotaped depositions, Lochead, 1994 WL , at *7, and information obtained through other legitimate discovery processes, Garrett, 1990 U.S. Dist. LEXIS 10868, at *7. The Lennen court reasoned that by finding the evidence admissible, it would allow the violating attorney to benefit from his rules violation, and could also potentially lead the attorney to attempt to testify for impeachment purposes. Lennen, 1997 WL , at *3. Disqualification of Counsel Generally Inappropriate Sanction for Rule 4.2 Violations Because Pennsylvania trial and intermediate appellate courts ability to disqualify attorneys based on their violation of the Rules of Professional Conduct is extremely limited, this sanction method is generally rejected in Rule 4.2 violation cases. See McCarthy, 772 A.2d at The Pennsylvania Supreme Court stated: Perceived violations of [the Pa. R.P.C.] do not permit the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct. Id. at 992 (quoting Reilly by Reilly v. SEPTA, 489 A.2d 1291, 1299 (Pa. 1985)). Instead, disqualification is appropriate only to ensure the parties receive the fair trial which due process requires. Id. at 991. Page 12 Dechert
14 Applying Rule 4.2 to Former Employees Who Are Putative Class Members Recently, the United States District Court for the Eastern District of Pennsylvania considered the application of Rule 4.2 to former managerial employees who are members of a putative class. See Dondore v. NGK Metals Corp., 2001 U.S. Dist. LEXIS 6268, at *4-5 (E.D. Pa. May 16, 2001). Absent consent from putative class counsel, the court opined that an attorney wishing to interview a former managerial employee within that group must obtain court approval. See id. at *5. Noting the importance of fact gathering outside the formal discovery process, the court, nevertheless, insisted that the members of the putative class must be shielded from defense counsel s unsupervised efforts and make an intelligent and voluntary decision whether to be represented by the putative class or speak to and aid the former employer. Id. at *5-6. The Court suggested a procedure that would strive to ensure the interests of all parties were served: (1) defense counsel must notify the court and all interested parties of his or her desire to interview a former employee; (2) all counsel should receive an opportunity to be heard; (3) if appropriate, the court may contact the potential witness, explaining to him or her the nature of the action, his or her rights, and the request for an interview; (4) the former employee must have the opportunity to consult with separate counsel; and (5) the former employee must decide whether, and under what conditions, to grant the interview. See id. at *6. Dechert Page 13