August 01, 2012

Ethics: Federal Litigation: A “No-Contact” Sport?

Bruce A. Green

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Suppose you represent the plaintiff in a federal lawsuit—for example, a labor, employment, or civil rights action—against a corporation, government agency, or other entity. You want to gather evidence by talking informally to some of the defendant’s current and former employees. This is preferable to deposing them, because it will be quicker, less expensive, and probably more revealing. But there is a possible impediment: the rule of professional conduct known as the “no contact” rule, which generally forbids a lawyer from communicating directly with the opposing party.

The rule, which in most jurisdictions is based on Rule 4.2 of the ABA Model Rules of Professional Conduct, is meant to protect clients from overreaching by opposing counsel and to ensure clients the benefit of their own lawyers’ advice and assistance when dealing with the other side. Few quibble with the rule when the client is an individual. But when the client is an entity, there is a question of how far it should stretch to forbid informal fact-gathering. There is general agreement that officers and employees of a represented organization who direct the representation and act on counsel’s advice should be off limits, because otherwise they might make improvident settlements or reveal client confidences. But what about employees and former employees who might have relevant information but do not call the shots—that is, mere witnesses who happen to be employed by the opposing entity?

Instead of making an effort to take consistent approaches in federal cases, federal courts generally apply the rule as interpreted by the state in which they sit. And state courts themselves differ widely. Two recent decisions illustrate the disparity—Chang-Williams v. United States, 2012 U.S. Dist. LEXIS 9132 (D. Md. Jan. 25, 2012), and Col v. Maine Medical Center, 2012 U.S. Dist. LEXIS 31468 (D. Me. Mar. 8, 2012).

In the Maryland case, a federal district court gave the no-contact rule a sweeping interpretation in a tort action brought against the United States after a Marine sergeant shot three relatives, two of them fatally. The plaintiffs maintained that the sergeant’s family had relied to its detriment on unfulfilled promises of other Marines to protect them after the sergeant erupted violently days earlier. The plaintiffs’ lawyer sought to interview current and former military personnel about the relevant events, but the court severely restricted access to them. It held that the applicable rule prohibited lawyers from communicating with any of the opposing party’s “current officers, directors and managing agents” (not solely those who were directing the representation); current agents or employees who direct the representation or regularly communicate with counsel; current agents or employees whose acts or omissions may have contributed to the organization’s liability; and former employees who previously supervised or communicated regularly with counsel and possess relevant confidential information. Under this standard, the court found, the lawyers had impermissibly telephoned a behavioral health manager in the Marine Corps family advocacy program to discuss the sergeant’s propensity to violence and what kind of support had been given to the sergeant’s wife. What’s more, the court warned the lawyers that if they spoke to former military employees, they risked sanctions if it turned out that the employees were privy to confidential information.

Go north to Maine, however, and lawyers have much more leeway to gather information by phone rather than by deposition. In a lawsuit against a medical center, the court granted the request of the plaintiff’s counsel to speak outside the presence of the medical center’s lawyers with eight employees (seven of whom were physicians) as well as with two physicians who directed programs at the medical center. That is because, according to the district judge, Maine’s state courts would interpret Maine’s rule to “ban contact only with those employees who have the authority to commit the organization to a position regarding the subject matter of the representation.” Mere witnesses, on the other hand, are fair game.

Why should federal litigation be a contact sport in Maine but a no-contact sport in Maryland? It is unlikely that employees are more vulnerable or that litigators are trickier in Maryland than in Maine. And the difference is not meaningless. A rule with a broad reach raises the burden and expense of federal litigation for individual plaintiffs suing organizations, thereby impeding their ability to vindicate the federal rights in issue. Perhaps evidence exists that organizations in jurisdictions such as Maine, which take a narrower approach, suffer injustices. If not, and if no other compelling reason exists to give broader protection to organizations, perhaps the balance should tip in favor of parties’ interest in conducting informal investigations.

Anyway, it is not obvious why federal courts presiding over federal litigation where federal rights are at stake should defer to the state courts in deciding how professional conduct rules ought to strike the balance between competing interests. Around 20 years ago, a federal judicial committee floated the idea of adopting uniform professional conduct rules for federal litigation, but the idea gained little traction other than among legal academics, probably because of the amount of work drafting would involve. Perhaps the idea should be renewed. A comprehensive federal code of professional conduct is probably unnecessary, but there is a lot to be said for the federal judiciary’s adoption of uniform rules when, as in the case of the no-contact rule, state variations are substantial and really do matter.


Bruce A. Green

The author is with Fordham University School of Law, New York City.