Corporate employees and Rule 4.2: Who is covered under the blanket?

You are a partner with a midsized law firm. A client comes to you with an employment discrimination case and tells you that certain employees at her company are willing to talk about the conditions there. She offers a list of names with addresses and phone numbers. Acting in the spirit of investigation regarding her case, you call two numbers on the list. Both individuals speak with you and describe situations that would bolster your new client’s claims. However, the next day you receive a letter by messenger and a phone call from the company’s lawyer telling you to stop any and all communication and attempts to contact employees of the company. He further states that for purposes of this matter, he represents all individuals employed at the company.

You are nonplussed by this and wonder whether this is correct. What can a plaintiff’s lawyer do to investigate a case? What should you do?

You should disagree strenuously. You’d have the American Bar Association ethics committee, case law and some state bar ethics opinions on your side.

The purpose of Rule 4.2, Communication with Person Represented by Counsel, is enunciated in paragraph one of the comment to the rule:

[1] This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.

The operation of the rule in regards to employees of corporations has long been unsettled. Since corporations can only function through their constituent members, the question of who in a corporation should be protected by the rule does not have an obvious answer. This is the situation where an opponent’s claim to represent all employees is likely to be made. However, this sweeping sort of claim to blanket representation has been soundly rejected in ABA Formal Ethics Opinion 95-396, which states:

… When a corporation or other organization is known to be represented with respect to a particular matter, the bar applies only to communications with those employees who have managerial responsibility, those whose act or omission may be imputed to the organization, and those whose statements may constitute admissions by the organization with respect to the matter in question. Thus, a lawyer representing the organization cannot insulate all employees from contacts with opposing lawyers by asserting a blanket representation of the organization.
… Expansive though the rule’s coverage is with respect to officers and employees of a represented organization, the rule does not contemplate that a lawyer representing the entity can invoke the rule’s prohibition to cover all employees of the entity, by asserting a blanket representation of all of them.

See also, paragraph seven of the comment to Rule 4.2, which states:

[7] In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability... If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.

Opinion 95-396 pointed out that the ban on contact is limited to the particular subject matter involved in the case. It reasoned that Rule 4.2 is not triggered if a lawyer says he represents the client for all purposes. 

By prohibiting communication about the subject matter of the representation, the rule contemplates that the matter is defined and specific, such that the communicating lawyer can be placed on notice of the subject of representation. Thus, if the representation is focused on a given matter, such as one involving past conduct, and the communicating lawyer is aware of this representation, she may not communicate with the represented person absent consent of the representing lawyer. However, where the representation is general — such as where the client indicates that the lawyer will represent her in all matters — the subject matter lacks sufficient specificity to trigger the operation of Rule 4.2.

Similarly, retaining counsel for “all” matters that might arise would not be sufficiently specific to bring the rule into play. In order for the prohibition to apply, the subject matter of the representation needs to have crystallized between the client and the lawyer. Therefore, a client or her lawyer cannot simply claim blanket, inchoate representation for all future conduct, whatever it may prove to be, and expect the prohibition on communications to apply. Indeed, in those circumstances, the communicating lawyer could engage in communications with the represented person without violating the rule.

Restatement 3rd of the Law Governing Lawyers, Section 100

The Restatement of the Law Governing Lawyers sets out reasoning for why a blanket prohibition of contact with any employee is undesirable:

A very broad definition of such persons, for example one including all present and former employees, would be easily administered but at an unacceptably high cost. Under such a rule, the organization's lawyer (as permitted under § 99 & Comment j thereto) could deny permission for the inquiring lawyer to speak to any employee. The opposing party would thus be required to resort to the burdensome process of filing suit (based on less information than would otherwise be available) and obtaining discovery to gain access to relevant information. Moreover, employees may be unwilling to speak as freely or candidly at a deposition in the presence of the lawyers for their employer as in an informal, pretrial interview. There is no justification for permitting one party thus to control entirely the flow of information to opposing parties. Such control is not available to an individual party, whose friends and colleagues may be approached without infringing the rule. The anti-contact rule stated in the section therefore reflects a balance among the considerations pertinent to the anti-contact rule (see § 99, Comment b).

Case Law

Much case law concurs on this point of view. See, eg., Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 6 (D.D.C. 2004); Michaels v. Woodland, 988 F. Supp. 468 (D.N.J. 1997); Harry A. v. Duncan, 330 F. Supp.2d 1133 (D. Mont. 2004); Weider Sports Equip. Co. v. Fitness First Inc., 912 F. Supp. 502, 508-509 (D. Utah 1996); Messing Rudavsky & Weliky P.C. v Harvard College, 436 Mass 347, 764 NE2d 825 (2002).

Ethics Committees

The Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court rebuffed a lawyer’s claim to represent all employees of a corporation and called the lawyer’s claim “bluster” in Ohio Supreme Court Op. 2005-3 (2005). The opinion stated that representation of a corporation and all corporate employees would be “fraught with impermissible conflicts of interest.” The Ohio board took the language of the comment to ABA Rule 4.2 as its standard. “Accordingly, the lawyer may not communicate ex parte with any employee who supervises, directs, or regularly consults with the corporation's lawyer concerning the matter, or has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.”

See also, Wisconsin Opinion E-07-01 (2007), which states that counsel may not simply assert blanket representation of all current and former constituents, but may ask — not require — current constituents not to speak to the opposing lawyer.

Fact Witnesses

Other ethics rules may be implicated by a claim to blanket representation of potential fact witnesses that obstructs opposing counsel’s access to witnesses and evidence. The Utah State Bar’s ethics panel called it improper to attempt to block an opposing lawyer’s access to fact witnesses by claiming to represent all corporate employees without having an individualized, proper attorney-client relationship with each employee. The Utah State Bar Ethics Advisory Opinion Committee in Op. 04-06 (2004) described such a claim as potentially in violation of Rule 4.1, Truthfulness in Statements to Others, which prohibits making false statements to third persons. Rule 3.4, Fairness to Opposing Party and Counsel, would also be implicated by actions aimed at blocking a party’s access to witnesses, the Utah panel’s analysis stated.