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Re: Advisory
Opinion 2004-01
Professional Ethics Committee
Arkansas Bar Association
Date: February
17, 2004
Subject:
Ex Parte Communication with Former Employees of Corporate
Adversary
Facts: The attorney for a plaintiff
wishes to communicate with former employees of the
corporate defendant. The attorney does not intend
to notify the lawyer for the corporate defendant.
Discussion:
Arkansas Rule of Professional Conduct 4. 2 bars communication
with an adverse party without prior notice to, and
the consent of, the attorney for the adverse party.
That Rule protects confidential information, prevents
intrusion upon the attorney client relationship, and
maintains the adversary system of justice.
That rule
applies equally, to corporate litigants. The Rule
prohibits communications by the attorney for one party
with persons having a managerial responsibility in
the corporation, and with any other person whose act
or omission may be imputed to the corporation for
purposes of liability, or whose statement may constitute
an admission. Comment 2 to the Rule. Accordingly,
the attorney for the plaintiff in a slip and fall
accident may not communicate with managers of the
defendant, nor with employees who may have been involved
or whose statements may constitute an admission of
liability. In the absence of the consent of the corporate
attorney, the attorney for the plaintiff must proceed
through formal discovery methods to obtain information
from such employees.
Here the
issue, however, is with former employees of the corporate
defendant. Neither the rule nor the comments address
this situation. But several reasons lead this committee
to the conclusion that former employees, no matter
what their former position, are to be treated differently.
1) The
structure and language of the rule focus on the present
tense and restrict communications. Such restrictions
should not be extended without clear authorization.
Comment 2 is written in the present tense and refers
to current employees. Only with forced reading could
the language be extended to former employees. Likewise
the text of the rule refers to communications with
"a party." Former employees are not parties.
2) Formal
Opinion 91-359 of the American Bar Association concluded
that the rule does not extend protection to former
employees.
3) Recent
judicial opinions have come to the same conclusion.
See, e.g., Clark v. Beverly Health and Reh. Serv.
Inc., 797 N.E. 2d 905 (Mass. 2003); P.T. Barnum's
Nightclub v. Duhammell, 766 N.E. 2d 729 (Ind.
Ct. App. 2002); Smith v. Kansas City Southern Ry.
Co., 87 S.W. 3d 266 (Mo. Ct. App. 2002).
4) The
August 2002 revisions of the Rules of Professional
Conduct contain express language in Comment 7 to Rule
4.2 removing restrictions on contacts with former
employees: "Consent of the organization's lawyer
is not required for communication with a former constituent."
This Professional Ethics committee and the House of
Delegates of the Arkansas Bar Association have approved
this new language. This language is currently pending
before the Arkansas Supreme Court.
5) Some
opinions draw a distinction between those former employees
who were in the litigation control group or management
group and those who were not. For example, Klier
v. Sordoni Skanska Constr. Co., 766 A. 2d 761
(N.J. 2001). However, we find no basis for any distinction
except between present employees and former employees.
The purpose of 4.2 is to protect the attorney-client
representation and the accompanying confidences. However,
the former employee is no longer represented by the
corporate attorney. The no-contact rule should not
be expanded or interpreted in such a fashion that
it creates further restrictions on the flow of information.
We do note
the limitations of our opinion. Although the plaintiff's
attorney is permitted to communicate with those former
employees, they are not compelled to speak. Those
former employees may be represented by their own counsel
in the matter; and upon knowledge of that representation,
the plaintiff's attorney must cease communication
with them. In addition, other factors may bar the
former employees from speaking. For example, former
corporate attorneys may remain bound by the evidentiary
privilege or the ethical standard of confidentiality.
Likewise other corporate officials may be bound by
confidentiality agreements. The former employee may
be still represented by corporate counsel. The comment
to Rule 4.4 emphasizes that the lawyer in seeking
information must do nothing that violates the rights
of the corporation or is an unwarranted intrusion
into a legal relationship. See Proposed Comment 1
to Rule 4.4.
Conclusion:
Within the scope of Rule 4.2, an attorney is permitted
to communicate in regard to the matter in question
with former corporate employees without seeking or
obtaining the consent of the corporate attorney.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of attorneys licensed
to practice in the State of Arkansas, and reliance
thereon is voluntary and relieves any Association
member from liability for the content hereof. This
opinion is intended to be the Association's best interpretation
of the Model Rules of Professional Conduct as promulgated
by the Supreme Court of Arkansas as that code applies
to the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By: ____________________________________
Howard W. Brill
Reporter
Professional Ethics Committee
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