A lawyer may not interview current employees of a corporate defendant without the consent of opposing counsel under DR 7-104(A)(1) when the proposed interview concerns matters within the scope of the employee's employment but may interview current employees about other matters.
Facts: A lawyer represents a woman in an employment discrimination case in federal court against a major corporation. At a social occasion, lawyer inquired of a friend who works at defendant corporation, but not in a management or policy-making situation, whether she knew of others who may have experienced similar discrimination at the hands of the defendant. Lawyer's friend responded affirmatively and gave lawyer the names of several persons to contact. Lawyer inquires whether he may inquire of such employees about such discriminatory incidents without violating DR 7-104(A)(1) and further asks whether the answer turns on whether those employees occupy management or policy-making positions.
Discussion: We assume that plaintiff's counsel is only seeking evidence relating to the claim sought to be established on behalf of his present client. Other considerations may apply if he is seeking information with respect to potential formation of a class of defendant's employees for purposes of a suit against defendant.
A crucial fact to note is that the inquiry concerns conduct relating to a case pending in the federal court. The jurisdiction of this committee pursuant to its rules is to interpret the rules of professional conduct promulgated by the Supreme Judicial Court. However, the federal district court has in effect adopted as its rules of professional conduct the rules adopted by the Supreme Judicial Court [see Rule 5(4)(B) of the District Court Rules] and we therefore believe that the inquiry falls within our jurisdiction.
DR 7-104(A)(1) provides that "During the course of his representation of a client a lawyer shall not: Communicate ... on the subject of a representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." (Emphasis added.) Since a corporation or other organization can speak only through its agents, the issue is the circumstances under which an employee who is not personally a party to the litigation ought to be treated as a "party" by reason of his or her employment.
Interpretations of the reach of DR 7-104(A)(1) when a corporate party is involved, have varied in the relatively few opinions of courts and ethics committees that have considered the matter. All have recognized that a corporation may speak only through its agents and that DR 7-104(A)(1) should be interpreted to forbid a lawyer for another party from communicating with some corporate employees without consent in the situation covered by that rule. Many have limited the prohibition narrowly to include only employees in the "control group," the senior management with power to commit the corporation. See Sobol v. Yeshiva University, 28 EPD 32,479 (S.D.N.Y. 1981); ABA Informal Opinion 1410 (Feb. 14, 1978); and Los Angeles Bar Opinion 234 (1956) and Los Angeles Bar Informal Opinion 1966-6. A few have extended the group more widely, see New York County Opinion 528 (1965), but until recently there has been little extensive consideration of the rationale for DR 7-104(A)(1) in the opinions.
Recently, however, the Committee on Professional Ethics of the Association of the Bar of the City of New York has canvassed the whole subject in an exhaustive opinion. See Inquiry Reference No. 80-46. Overruling a prior opinion, the opinion concluded that "the principal interest reflected in DR 7-104(A)(1) is the party's right to effective representation of counsel" and "that the corporation's right to effective representation can be guarded adequately only by viewing all present employees of a corporation as 'parties' for purposes of DR 7-104 where the proposed interview concerns matters within the scope of the employee's employment."
The committee noted that while an attorney might not "alter or shade the facts under the guise of zealous representation," effective representation involved the control, to some extent, of the flow of information to an adversary; "it is an acknowledged aspect of effective representation that the attorney aid his client both to avoid procedural pitfalls and to present truthful statements in the most effective manner."
We agree with the conclusion and reasoning of the New York City committee. We further agree with its view that although there are countervailing interests in the desire of the adversary party to obtain evidence, these considerations have already been weighed in the formulation of the rule, which specifically subordinates this need to the need to protect a lay party from unsupervised communications with its opponent's counsel.
Support for the notion that effective representation of counsel is the touchstone for interpreting DR 7-104(A)(1) is derived from the fact that all who have considered the matter appear to agree that the prohibition of the rule applies only to present, not former, employees of the corporation. The reason is that former employees enjoy no present agency relationship that is being served by the representation of corporate counsel. Even more important, the position we are adopting is also in accord with the law of evidence as exemplified in Federal Rule 801(d)(2)(D), which recognizes an exception to the hearsay rule as to "a statement by his agent or servant concerning the matter within the scope of his agency or employment, made during the existence of the relationship." This rule binds the corporation with respect to admissions by employees far beyond the "control group" of the corporation. Thus for example, in litigation arising out of motor vehicle accidents it is not uncommon that the corporate defendant has only one agent involved, the driver, who will usually not be a management employee. Rule 801(d)(2)(D) permits the driver's admissions about the accident to be introduced against the defendant corporation, and it seems quite in line with the consequences to the corporation to include the driver within the group to be covered by the prohibitions of DR 7-104(A)(1).
It should be noted that we are not attempting to assert that in reality the broader test being adopted by this opinion is the same as the control group test because the law of evidence gives employees the power to "commit" the corporation by reason of their statements, because made with respect to matters within the scope of their employment. Those who advocate the "control group" test and refer to management employees who have power to commit the corporation are referring to management employees with power to commit the corporation more generally, those with power to commit the corporation to policy decisions in the course of litigation and to settlement decisions. Loose use of language concerning employees "with power to commit the corporation" often makes it difficult to be certain whether a particular opinion is advocating the pure control group formulation or the one being advocated in this opinion. See ABA Informal Opinions 1377 and 1410.
The rule adopted by this opinion does not preclude a lawyer from interviewing employees of an adversary corporation without its lawyer's consent in all situations. Where employees have information that does not relate to matters within the scope of their employment, that is, where they are not in a position to bind the corporation by their statements, then their situation seems more analogous to that of the ordinary witness and not an agent and the prohibition of DR 7-104(A)(1) ought not to apply. The familiar example is that of the employee who merely witnesses a traffic accident involving a corporate vehicle.
This discussion now permits us to address the facts of the particular inquiry and to advise the lawyer that in our opinion he may discuss incidents relating to discrimination at a particular corporation without seeking the consent of the corporation's lawyer so long as the subject matter of the inquiry is not part of the particular employee's corporation responsibilities. We do not have sufficient facts to be able to answer the question with greater specificity and indeed in some situations it will not be easy for the lawyer to be certain whether the prohibitions of DR 7-104(A)(1) apply. That, however, would be a problem with any standard that draws a line among corporate employees.
Since this is the first opinion of the committee discussing DR 7-104(A)(1), we should make explicit what we have chosen not to cover in this opinion. We have not covered the applicability of the rule to criminal proceedings or to situations where the entity involved is the government or is a non-corporate entity. It has been argued that different considerations may apply to those situations, but we are expressing no point of view. We should add, however, that one argument made for a "control group" interpretation of DR 7-104(A)(1) is that if the entity were a sole proprietorship, an adversary attorney would not be prohibited from seeking information from its employees without its lawyer's consent. While that issue is not before us, we would advise that the premise of the argument seems doubtful. If the employee of a corporation may be a "party" for purposes of DR 7-104(A)(1), there seems to be no special reason why an employee of a sole proprietorship who has power to commit the sole proprietorship ought not to be able to be considered as a "party" as well.
One final, important problem should be noted. The Committee on Professional Ethics of the Association of the Bar of the City of New York in its Inquiry Reference 80-46 found support for its rejection of the control group interpretation of DR 7-104(A)(1) in the recent rejection by the United States Supreme Court of the argument for a control group limitation to the reach of the attorney-client privilege in the corporate context. Upjohn Co. v. United States, 449 U.S. 383 (1981). We do not believe that the attorney-client privilege and DR 7-104(A)(1) necessarily require the same coverage of employees within the corporate context. For example, a policy to encourage conversations by lower level employees with corporate counsel through an expansive reading of the attorney-client privilege does not necessarily require the adoption of a reading of DR 7-104(A)(1) to discourage conversations with counsel for an opposing party. However, once we read the policy behind DR 7-104(A)(1) as assuring effective representation of counsel and hence rejecting the "control group" test for DR 7-104(A)(1), it would strike us as somewhat unusual if the same jurisdiction were to have a lesser coverage of corporate employees in the attorney-client situation than in the DR 7-104(A)(1) situation.
The situation in Massachusetts with respect to that problem is very unclear at the moment. Although the Advisory Committee Notes to Rule 502 of the Proposed Massachusetts Rules of Evidence quite rightly point out that there has been no definitive pronouncement of the coverage of the attorney-client privilege in the corporate context in Massachusetts, an unreported Superior Court opinion by Judge Young follows the recommendation of the Advisory Committee and adopts the control group test. In the Matter of A Civil Investigative Demand Addressed to Yankee Milk, Inc. (Superior Court No. 9175 1979). We would hope that when this matter is finally resolved, the Supreme Judicial Court would follow the reasoning of the United States Supreme Court in the Upjohn case. In the first place, that would avoid inconsistency between DR 4, the confidentiality rule, which adopts the law of attorney-client privilege as its test, and what we believe is the proper interpretation of DR 7-104(A)(1). In the second place, that would obviate the possibility of different interpretations of both DR 4 and DR 7-104(A)(1) in the federal and state courts in Massachusetts. Different interpretations would create enormous uncertainty among lawyers as to their obligations under those rules, especially since it is often impossible to tell in advance whether one is operating under the federal or state rules and one may in fact be operating under both. Indeed, although we began this opinion by noting that the federal district court had in effect adopted the rules of professional conduct as promulgated by the Supreme Judicial Court, we close by noting that if Massachusetts rejects the Upjohn reasoning, we will end up with divergent interpretations of DR 4, and possibly of DR 7-104(A)(1) as well, in the state and federal courts. If the Supreme Judicial Court rejects Upjohn, we would then wish to reconsider the interpretation of DR 7-104(A)(l) adopted in this opinion.
Permission to publish granted by the Board of Delegates, June 23, 1982. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.