Ethics Opinion

Opinion No. 02-3

March 2002

Summary: As a general rule, the anti-contact prohibition of Rule 4.2 does not apply to former employees of a corporation.

Facts: Following the adoption of the Massachusetts Rules of Professional Conduct (MRPC), effective January 1, 1998, several lawyers have inquired whether in connection with pending or contemplated litigation they may interview former employees of a corporation without the consent of the attorney for the corporation.

Discussion: Since the adoption of the MRPC, this Committee has received numerous inquiries in a variety of fact situations that have raised the question of the applicability of MRPC 4.2 to contact with former employees of a corporation. While we have responded to those inquiries in informal letters, we have not published an opinion on the subject. There was a difference of opinion on the appropriate answer to that question among the various courts and ethics committees that had interpreted rules with similar wording, and we were awaiting some guidanUUe Judicial Court. The Supreme Judicial Court scheduled argument in companion cases this past winter, one construing the application of Rule 4.2 to current employees of an organization and the other construing the application of Rule 4.2 to former employees of an organization. It has decided the former case, Messing, Rudavsky & Weliky v. President and Fellows of Harvard College, 436 Mass. 347 (Mar. 19, 2002), but it has put off the argument of the second case, Patriarca v. Center for Living and Working because one of the parties became bankrupt and an automatic stay has been entered. We have decided to publish an opinion concerning the applicability of Rule 4.2 to former employees because the interest of the bar in the subject is intense, because the Supreme Judicial Court has given some guidance about the appropriate approach to interpretation of MRPC 4.2, and because its decision of the precise issue with respect to former employees has been delayed.

In 1982, this Committee, interpreting the former DR 7- 104(A)(1) in Opinion 82-7, stated its view that the anti- contact principle embodied in that Rule prohibited contact with current employees about matters relating to their scope of employment without consent of counsel. The SJC rejected that interpretation as applied to current MR 4.2 and has now rewritten Comment 4 to that Rule in accordance with its present views. A section of Opinion 82-7 also dealt with the application of the anti-contact principle to former employees. We advised that the Rule did not apply to contact with former employees because such employees "enjoy no present agency relationship that is being served by representation of corporate counsel."

Rule 4.2, as adopted by the SJC effective January 1, 1998 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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.

Although the language of new Rule 4.2 is close to that of former DR 7-104(A)(1), Comment 4 to Rule 4.2 , both in its original 1998 version and as rewritten by the Supreme Judicial Court in June 2002, raises a problem with respect to this Committee's original view that Rule 4.2 does not apply to former employees.

Comment 4 to Rule 4.2, as amended by the Supreme Judicial Court on June 5, 2002 to incorporate its holding in Messing, provides:

In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee 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).

Comment 4 prohibits contact with any agent or employee "alleged to have committed the wrongful acts at issue in the litigation." The argument could be made that that category may include former employees because the liability of an organization may be predicated on wrongful acts of a former employee. See Schwartz v. Camp Robin Hood, 2002 U.S. Dist. Lexis 8342 (D. Mass. 2002), reaching that conclusion. Yet the ABA Committee on Ethics and Professional Responsibility, interpreting the ABA Model Rule Comment 4's prohibition of contact "with any person whose act or omission in connection with that matter may be imputed to the organization" for liability purposes, concluded that although "persuasive policy arguments can be and have been made for extending the ambit of Model Rule 4.2 to cover some former corporate employers, the fact remains that the text of the Rules does not do so and the comment gives no basis for concluding that such coverage was intended. " ABA Formal Opinion 91-359 and see Formal Opinion 95-396, n.47. Compare also Public Services Electric & Gas Co. v. Associated Electric & Gas Ins. Serv., Ltd., 745 F. Supp 1037 (D. N.J. 1990) with Curley v. Cumberland Farms, Inc., 134 F.R.D. 77 (D. N.J. 1991) and Camden v. Maryland, 910 F. Supp. 1115 (D.Md. 1996), Zachair Ltd. V. Driggs, 965 F. Supp. 741 (D. Md. 1997) and Davidson Supply Co. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997), in which judges of the same court reached opposite conclusions on this issue.

Two years ago, Judge Fecteau, interpreting the language of former Comment 4, concluded that "Rule 4.2 may be applicable to former employees, as their statements could potentially constitute admissions, or their acts or omissions could be imputed to the corporation." Patriarca v. Center for Living and Working, Inc., 2000 Mass. Super LEXIS 241 (Super. Ct. 2000), appeal pending in the Supreme Judicial Court. See also Clark v. Beverly Health and Rehabilitation Services, Inc., 2001 Mass. Super. LEXIS 289 (Super. Ct. 2001).

These decisions, however, were rendered before the Supreme Judicial Court's decision in Messing. The court in Messing viewed Comment 4 as "overly protective of the organization." It rejected a portion of Comment 4 and stated a new interpretation of the Rule that it recognized "as a retrenchment from the broad prohibition on employee contact endorsed by the comment." It has codified its new interpretation in the revised Comment 4 quoted above.

Although the Messing interpretation eliminates the "admissions" test that was a main prop of the Patriarca opinion, its prohibition of ex parte contact with employees or agents alleged to have committed the wrongful acts at issue leaves open the argument that some former employees may fit within that category. But the Messing opinion makes another change in Comment 4 that seems important. The superseded Comment 4 applied the prohibition on contact to "any other person whose act or omission in connection with that matter may be imputed to the organization." (emphasis added) New Comment 4 prohibits "ex parte contact only with those agents or employees . . . who are alleged to have committed the wrongful acts at issue in the litigation." (emphasis added). Former agents or employees are not "agents or employees" of an organization.

It is unlikely that the change in language from "person" to "agents or employees" was inadvertent because the "former employee" issue had originally been scheduled for argument in the Supreme Judicial Court at the same time as the "current employee" issue, and the Court must have been aware of the issue when it decided Messing. Elimination of the category of former employees from the anti-contact prohibition recognizes that it is not appropriate to regard a former employee as a person who may fairly be said to fall within a group represented by corporate counsel. That group should be limited to those persons who currently enjoy an agency or employee relationship with the corporation. That is also the conclusion reached in Intergen N.V. v. Grina, 2002 U.S. Dist. Lexis 5512 (D. Mass. 2002) and by the ABA's Ethics 2000 Commission in its Revised Comment 7 to Model Rule 4.2, which has been approved by the ABA's House of Delegates. See also Restatement (Third) of the Law Governing Lawyers ß100. The contrary conclusion could lead to the bizarre situation that a corporate employee who believed she had been fired unjustly for conduct that later was the subject of litigation could not speak with the lawyer conducting the litigation against the corporation without the consent of her former employer's lawyer.

The conclusion that Rule 4.2 does not apply the anti- contact prohibition to former employees is not absolute. A former employee may of course choose to be represented by the lawyer for his former corporate employer. Communication of that information to opposing counsel would then trigger the anti-contact provision of Rule 4.2. Also, a former employee may have been so exposed to confidential information that contact with the employee should only be made through corporate counsel. See Opinion 88-5 and also Restatement (Third) of the Law Governing Lawyers as quoted in footnote 2.

Permission to publish granted by the House of Delegates on June 26, 2002. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.