Plaintiff’s counsel called a witness he hoped would give favorable testimony. The only problem was that this witness, a high-level professor, worked for the defendant university. Moreover, plaintiff’s counsel admitted the contact “was an inadvertent technical violation of the [ethical] Rule.”
Later, plaintiff’s counsel admitted to talking with a second non-managerial employee. The university’s counsel moved to disqualify plaintiff’s counsel, and eventually, the court entered an order requiring plaintiff’s counsel to turn over all his interview notes with the witness.
The U.S. District Court for the District of Connecticut in Metcalf v. Yale University considered these facts and all of its options in fashioning a remedy for this violation of the ethical rules. While the college’s counsel believed disqualification necessary because counsel had discussed confidential information about trial strategy with the witness, the court disagreed, denying the motion without prejudice to renew.
The court required instead that plaintiff’s counsel turn over all notes related to his conversation with the witness. Counsel for the college could review the notes to figure out the extent of the violation and the need for further relief.
At issue was Rule 4.2 of the Connecticut Rules of Professional Conduct, which states, in part, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” It’s a rule that makes sense in the case of individuals, but it can become complicated with businesses as a party.
As a result, the commentary provides significant guidance in this regard. Specifically, the commentary notes, in part, that the Rule prohibits communications “with any other person whose act or omission in connection with that 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.”
While the rules vary from jurisdiction to jurisdiction, John M. Barkett, Miami, FL, cochair of the ABA Section of Litigation’s Ethics & Professionalism Committee, does not believe this to be a close case. “Despite the lawyer’s argument that the witness had previously testified favorably in a grievance hearing for his client, he should’ve known better,” says Barkett.
Even if it were a close case, Ethan T. Tidmore, Birmingham, AL, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee, says litigators should approach interviews like this carefully. “A lawyer always needs to be mindful of whether a witness is employed by your opponent and, if so, the lawyer should review and consider the governing ethical rules before making contact,” Tidmore says. “There are many pitfalls in this area and you should err on the side of caution when you are contemplating contacting an employee of the opposing party.”
Attorneys should likewise note the jurisdiction in which they are litigating. Barkett notes specifically that the State of Arizona takes a firm view on these issues. For instance, Arizona Ethics Opinion 00-05 imposes strict requirements on a lawyer conducting an ex parte interview of even a former employee of a party opponent. On the other end of the spectrum, Barkett notes some jurisdictions would consider talking to lower-level employees not only permissible but also classic work product.
“You have got this friction between informal discovery to save costs, something that the State of New York endorses, and then formal discovery where you should be able to get the same information,” says Barkett. Research into the jurisdiction and the rules under which the attorney operates, therefore, will play a key role in who an attorney can talk to and what an attorney can ask of an employee, or even a former employee, regarding a case.
Tidmore also believes litigators should advise employees of their clients regarding their rights upon receipt of a phone call from opposing counsel. “As a general rule, attorneys may advise employees that they are not obligated to informally speak to an opposing lawyer,” says Tidmore. “Some employees may be misinformed and believe they have to speak to that lawyer.”
Tidmore notes the Model Rules of Professional Conduct generally prohibit a lawyer from asking a person not to voluntarily give relevant information. But, the Rules expressly permit such a request to employees of the client provided the lawyer reasonably believes disclosure will adversely affect the person’s interests.
Barkett also suggests that attorneys advise their clients to take caution in what they say to their employees. This keeps those witnesses from having confidential information, like trial strategy, that they could divulge should opposing counsel call the client’s employees.
