Ethics Opinion

Opinion No. 88-5

May 1988

Summary: An attorney for a condominium unit owner involved in litigation against the condominium trust may communicate ex parte with a former trustee who was a witness to relevant acts, but may not ask the trustee anything that might be protected by the trust's attorney-client privilege. Such a discussion would not violate the prohibition against ex parte communications with an opposing party embodied in DR 7-104(A)(1). Effective representation of counsel for the trust, which is the touchstone for our application of DR 7-104(A)(1), would not be significantly diminished by such an ex parte interview.

Facts: The owner of a condominium unit has sued the condominium trust regarding certain actions taken by the trustees; the trustees are nominal parties to the litigation. A former trustee who ceased his trusteeship before the litigation began, and who is not named in the suit, contacted the attorney for the unit owner and asked to be interviewed privately--outside of the presence of counsel for the trust--regarding the circumstances of the dispute. The former trustee was involved in, and was a witness to, actions and deliberations related to the dispute, including actions of the then-trustees in their capacity as trustees. The unit owner's attorney would like to conduct such an interview.
Discussion: The controlling provision of the Disciplinary Rules is DR 7-104, which provides in relevant part:
(a) During the course of his representation of a client, a lawyer shall not:
(1) communicate or cause another to communicate on the subject of the 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.
The key to resolution of this problem is the determination of whether the former trustee, given his or her capacity at the time of the events in dispute, is to be treated as a "party" for purposes of DR 7-104(A)(1). If so, then the owner's attorney may not interview the witness without trust counsel present.1 If not, then the attorney is free to interview the witness, as he would any other witness with material facts, with the caveat concerning the attorney-client privilege discussed below.
In 1982, the committee decided that DR 7-104(A) prohibits a lawyer from interviewing current employees of a corporate defendant without the consent of opposing counsel, when the proposed interview concerned matters within the scope of the employee's employment, but that the rule did not prohibit interviews of current employees about other matters. The committee based its opinion on its belief that the rule is designed to guarantee effective assistance of counsel for all parties in litigation, and noted 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.
(Formal Opinion No. 82-7.) The committee also assumed, in dictum, that its reasoning would apply to legal entities other than corporations. Applying this opinion to the present hypothetical, the former trustee would not be considered a "party."
Six years after this opinion, however, various courts have considered the issue addressed in Opinion 82-7, with varying results. In Amarin Plastics v. Maryland Cup, 116 F.R.D. 36 (D. Mass. 1987), for example, United States Magistrate Saris allowed counsel representing a party opposed to a corporation to contact ex parte a former corporate officer, on the grounds that the officer held no ongoing agency relationship with the corporation, and, therefore, that no acts or omissions of the officer could be "imputed" to the corporation for purposes of civil liability. In so deciding, the magistrate distinguished Sperber v. Washington Heights--West Harlem--Inwood Mental Health Council, No. 82 Civ. 7428 (S.D.N.Y. Nov. 21, 1983), vacated and withdrawn, where DR 7-104 was held to prohibit ex parte contact with former employees whose acts were the subject of the litigation, and American Protection Insurance v. MGM Grand Hotel--Las Vegas, Nos. 83-2674, 83-2728 (9th Cir. Dec. 3, 1984), withdrawn, where 7-104 was held to prohibit ex parte contact with a former employee who retained an ongoing relationship as a consultant in the litigation. The court quoted language from the Sperber decision to the effect that,
the former employees were not "merely witnesses to events and actions taken by the defendant organization while they were employed there," but that they were in the "highest management positions of the organization as well as the primary actors for the organization with respect to the conduct giving rise to this lawsuit.
116 F.R.D. at 40. These facts are not obviously different from the facts of the situation presented to the committee.
Furthermore, in Porter v. Arco Metals, 642 F.Supp. 1116 (D. Mont. 1986), the court held that neither ABA Model Rule 4.2,2 nor the attorney-client privilege, prohibited ex parte interviews with former employees so long as the employees lacked "managerial" responsibilities concerning the matter in dispute, and so long as the lawyer did not inquire into privileged communications. In Mompoint v. Lotus Development, 110 F.R.D. 414 (D. Mass. 1986), United States Magistrate Collings allowed ex parte interviews of current corporate employees on a balancing-of-needs test, on the ground that the plaintiff's counsel faced a more difficult task in gathering evidence to prove that reasons given for a job termination were pretextual than the defendant's counsel did in producing testimony regarding defendant's version of what the terminated plaintiff had actually said to corporate employees regarding relevant employment issues. The court also questioned the interpretation of DR 7-104(A)(1) which we gave in our Formal Opinion No. 82-7. See also Chancellor v. Boeing Co., 678 F.Supp. 250 (D. Kan. 1988) (prohibiting ex parte interviews with current or former employees who were involved deeply enough with the making of the relevant decisions to have their actions imputed to the defendant for purposes of civil liability), and various authorities cited therein, and Frey v. HHS, 106 F.R.D. 32, 37 n.2 (E.D.N.Y. 1985), collecting and categorizing numerous court decisions and bar committee opinions on the subject.
If we were to follow the reasoning of these decisions in the facts as presented here, we would be required to analyze exactly how "involved" the former trustee was in the decisions and deliberations in which he or she took part, and whether or not such involvement would cause the former trustee's acts or omissions to be imputed to the trust, before we could determine whether the former trustee should be deemed a "party." The committee disagrees with the rationale of these decisions, however, and holds fast to its view that effective representation of counsel is the touchstone for interpretation of DR 7-104(A)(1). The committee believes that distinctions based on "imputed liability" and the former trustee's ability to "speak" for the trust are irrelevant in the case of a former officer or employee. (The committee also believes that there is no significant difference for this purpose between a trust, with a former trustee as witness, and a corporation, with a former officer or other agent as witness.) An interview with a non-party former trustee who witnessed discussions and other actions relevant to the dispute, regardless of his or her participation in those discussions and other actions, does not impair the trust's ability to obtain effective representation of counsel any more than would an interview of any material witness. Effective representation of counsel for the trust is diminished only in the way that effective representation would always be diminished where one party has developed access to information, in the early stages of litigation, that an opposing party has not.
Our one caveat concerns the trust's attorney-client privilege. Because any attorney-client privilege belongs to the trust and may not lawfully be waived by the former trustee, because a former trustee may in fact waive the privilege by discussing matters with a third party that the trustee discussed with legal counsel, and because the trust's counsel would not be present at such an interview to prohibit such discussions, a lawyer in this position is cautioned not to raise or ask about matters that might be so privileged. The ability to have an ex parte discussion with a party's former agent is no license to interfere with the party's privilege.
1 Of course, if the attorney secures counsel's permission to meet with the former trustee, no issue is raised concerning DR 7-104(A)(1), although our caveat concerning the attorney-client privilege would still apply.
2 Rule 4.2 of the Model Rules provides in pertinent 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.

Permission to publish granted by the Board of Delegates on June 28, 1988. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.