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L. Steven Platt Re: Proposed Redraft of Model Rule 4.2 - Center for Professional Responsibility

February 1, 2000

ABA Ethics 2000 Commission
c/o Ms. Susan Campbell
American Bar Association
541 N. Fairbanks
Chicago, IL 60611

Re: Proposed Redraft of Model Rule 4.2

Dear Ms. Campbell:

Thank you for the opportunity to submit comments to the Ethics 2000 Commission at the ABA Mid-year Meeting on February 10, 2000. The within comments are submitted on behalf of the National Employment Lawyers Association (NELA), a voluntary membership organization of over 3,000 lawyers who regularly represent employees in labor, employment, and civil rights disputes throughout the United States. NELA members represent tens of thousands of employees and applicants on claims of unlawful employment discrimination and other claims arising out of the workplace. Many of our members, including the signatories of this letter, are also active ABA members.

In the course of representing employees, typically in matters in which the opposing party is a corporation or other organizational entity, our members have had extensive experience attempting to harmonize our obligations under existing Model Rule 4.2 with the obligations we owe to our clients and the court system to act assertively in seeking relevant information from available witnesses. Many of our members have had great difficulties attempting to apply the Rule and the complex, confusing and inconsistent body of jurisprudence it has spawned. Consequently, your efforts to improve the Rule and its accompanying comments are most welcome, although, in our view, some additional revision is still necessary. Below, we have summarized our thoughts on the Commission's latest redraft of the Rule and its Comments, and have offered specific alternative language where we thought it would be helpful.

At the outset, we would like to commend the Commission for the Draft's thoughtful and highly workable solutions to several problems that have plagued interpretation and enforcement of the current version of Model Rule 4.2. First, Comment 5 of the Draft appropriately clarifies that the Model Rule does not bar communications with former employees of an adverse organizational party. Former employees, who may have left the organization under a variety of circumstances and who lack any current ability to act on the organization's behalf, cannot be said in any meaningful sense to be represented by the organization's counsel. Comment 5 of the Draft appropriately recognizes this reality.

A second example of the improvements effectuated by the Draft is its clarification, also in Comment 5, that communications with a corporate employee are not barred merely by virtue of the possibility that they might constitute "admissions" in the evidentiary sense. As this Commission knows, the "admission" language of Comment 4 to the current Model Rule has been given an extraordinarily broad interpretation by many courts. A number of decisions have viewed this language as proscribing a lawyer's contact with all or virtually all employees on the ground that any employee might conceivably make statements that might be admissible in evidence against the employer. Such an interpretation is inconsistent with other language in Comment 4 and was clearly never intended by Comment 4's original authors. The Draft's return to their intent by embracing the binding admission concept (in Comment 5's "authority-to-obligate" language) is most welcome.

In contrast, we respectfully suggest that revisions to certain other aspects of the Draft are needed.

First, new Comment 3a authorizes lawyers to seek court orders in "exceptional circumstances" to determine the propriety of proposed communications. At present, there is a wide range of practice in this area. Many lawyers adopt the practice of seeking court guidance prior to initiating any communications with current employees, perhaps an appropriately conservative precaution in light of the lack of doctrinal clarity in the existing case law. Indeed, the very text of the Rule, which insulates any court- authorized communications from its prohibitions, seems clearly to invite such a course of action. Other lawyers affirmatively decline to seek such court orders, perhaps troubled by the very common problem that revealing the identities of prospective interviewees to adversaries in advance often leads to pressure on the interviewees to change their minds about being interviewed at all. Hence lawyers' very efforts to obtain guidance from courts can obviate any practical value of that guidance once received. Given the language of the underlying Rule; the fact that lawyers' approaches are varied; and that good reasons may exist for seeking court orders or not, there seems little reason to limit the circumstances in which lawyers are authorized to seek such orders. We urge that the "in exceptional circumstances" limitation in Comment 3a be eliminated.

Second, Comment 5 retains the provision in existing Comment 4 that prohibits communication with employees "whose act or omission in the matter may be imputed to the organization for purposes of civil or criminal liability."

We acknowledge and appreciate the logic that informs this provision. Organizational lawyers should have the opportunity to withhold consent from communications with lower-level employees whose (mis) behavior is the particular focus of the claims in the lawsuit. Thus an adverse party in a defective product case (for example) should not be able to interview ex parte the machinist whose allegedly deficient assembly caused the malfunction at issue in the case.

However, we are concerned that the drafted language sweeps too broadly for its intended purpose. The following examples from our practice illustrate the problem:

  • Plaintiff brings a civil action challenging defendant university's denial of tenure to her. She was denied tenure because the university president rejected her candidacy, after she was unanimously approved for tenure both by her department colleagues and a university-wide tenure committee. Her primary prospective witnesses are, necessarily, her department colleagues who can testify as to her teaching skills and the quality of her scholarship.

However, defense counsel may claim that none of those colleagues may be interviewed by plaintiff's counsel. That is because all these colleagues had a formal role in the decisionmaking process with respect to the tenure decision - i.e., their "act[s] or omission[s] in the matter may be imputed to the organization for purposes of . . . liability." Although their acts or omissions are not, in fact, actually being attributed to the organization in this case - the organization as an organization did the exact opposite of what the colleagues' vote sought to accomplish - they come within the literal language of this Comment.

  • A state government agency is pursuing a civil claim that a defendant corporation has allegedly mishandled the disposition of toxic waste. Warehouse clerks and their supervisor had the duty of formally documenting the steps taken in disposing of the waste. The supervisor allegedly wrote the deficient documentation which is at issue in the case. The clerks' duties were administrative, including filing, copying and distributing the documentation to the individuals and entities required by law to receive it. After the case is filed, one of the clerks calls the government's attorney because she wants to describe her observations, as an eyewitness, of inconsistencies between her supervisor's documentation and the actual disposition of the waste.

However, the clerk's "act[s] or omission[s]" in compiling (or not) the applicable documentation "may be imputed to the organization" for liability purposes, because she was responsible for compiling and distributing documentation pursuant to the statute being enforced in this case. Although the compiling and distribution of the information are not at issue in the case; although government counsel is not actually attributing the clerk's actions to the defendant corporation; and although such an attribution would be entirely inconsistent with the posture of the case and with government counsel's theory of the case, the literal language of Comment 5 would preclude the interview of the clerk.

  • Plaintiff claims that she was sexually harassed by a co-worker, and that the company's response was inadequate. The company has an employee handbook that says "it is every employee's responsibility to report sexual harassment." Plaintiff's attorney wants to interview a different co-worker eyewitness who observed the harasser's conduct. The eyewitness co-worker never reported the harassment to anyone.

However, the eyewitness's "act or omission" in failing to report the harassment could theoretically be "imputed to the organization" for liability purposes, because the eyewitness failed to make the report required by company rules and hence contributed to the company's allegedly inadequate response. This is an inappropriate result, since the plaintiff is not actually seeking to hold the company liable because of the eyewitness's failure to report, and that failure to report has not been made an issue in the case by either party. Nevertheless, Comment 5 would arguably ban an interview of the eyewitness.

These scenarios suggest that the language of the "act or omission" provision in Comment 5 should be limited to circumstances in which the interviewee's "act or omission" is truly a live issue in the case or has any potential for becoming so. The Comment's language should not preclude interviews with people whose structural role might in other circumstances theoretically lead to organizational liability, if the factual realities and posture of the instant case effectively preclude that possibility.

We suggest the following alternative language (text diverging from the Commission's current draft is capitalized):

. . .with respect to the matter, or whose act or omission in the matter IS SOUGHT TO BE imputed to the organization AT ANY TIME for purposes of civil or criminal liability IN THE MATTER AT ISSUE.

The proposed language as redrafted above amply protects the organization, because the lawyer cannot use the witness's statements against the organization in any fashion. However, the proposed language permits interviews where the imputation of liability based on the witness's actions is a theoretical construct only and not a possibility extant in the actual case. Of course, any effort by the lawyer conducting the communication to impute such liability, based on a change of theory after the interview takes place, would be prohibited under the proposed language.

Thank you for the opportunity to proffer these comments on this crucial issue.

Very truly yours,

L. Steven Platt
National Employment Lawyers Association

Ellen J. Messing
Chair, Ethics Committee
National Employment Lawyers Association

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