Key current employees of corporate litigation parties cannot be approached by counsel representing opposing parties during litigation. ABA Model Code of Professional Responsibility DR 7-104(A)(1), ABA Model Rules of Professional Conduct 4.2. This rule has been interpreted to apply to government prosecutors and their agents as equally as it does to private civil lawyers and their staffs. ABA House of Delegates Report No. 301 (approved Feb. 12-13, 1990). Former corporate party employees, however, are fair game, and may be subpoenaed and interviewed in advance of their deposition or court testimony. But when a member of a party’s litigation team conducts an informal, ex parte interview of an adverse party’s former employee, there is a potential that the source will divulge information or documents that may be protected by the attorney-client privilege formed between the source’s corporate employer and their counsel.
There is an articulable risk that former employees of corporate lawsuit parties whose former position would identify them as an executive, or an employee who could, in presenting testimony, speak for, or bind the corporate party to an answer, can both harm their former employer’s privilege interest and create an ethical conflict for the adverse lawyer by revealing privileged matter. If the adverse corporate party can later demonstrate that the information or document divulged in an ex parte interview with opposing lawyers or staff was both privileged and specifically imparted during the interview, a potential result can be the disqualification of the interviewing firm from the lawsuit.
The potential for an ethical violation in former key employee scenarios and the lurking potential for lawyer disqualification in instances where the transmission of privileged matter can be proved requires precaution and foresight. No amount of precaution can foreclose the possibility that a witness will disclose privileged matter and that a disqualification attempt might follow. However, a best practice that should foreclose the possibility of the accusation of an ethical breach in this situation involves asking the witness to read and sign a cautionary statement setting forth the following:
- A brief explanation of the attorney-client privilege and work product doctrine.
- An instruction not to divulge potentially privileged information or documents during the course of the interview.
- An acknowledgement that the interview itself and the information provided during the interview were not coerced or induced by any person.
- An acknowledgement that the witness is free to stop the interview at any time and contact legal counsel, their former employer, or their former employer’s legal counsel.
- The mailing address and telephone number of the presiding court and the state bar association having jurisdiction over the interviewing firm.
Michael Cavendish is a shareholder with Gunster in Jacksonville, Florida.
Article originally published by the Trial Evidence Committee in November 2006.
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