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Ethics Opinion

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CI-526

June 30, 1980

SYLLABUS

    (1) It is not improper for an attorney representing a plaintiff, in an age discrimination case against a corporate employer to discuss the case with the corporate defendant's non-management employees outside the presence of defense counsel provided, at the outset of the discussion, the attorney:

      (a) Identify him or herself as an attorney for a party in pending litigation involving the corporate employer; and

      (b) States the purpose of the communication to the corporate employee; and

      (c) Determines the corporate employee is not a party to the litigation and/or is not represented by an attorney.

    (2) Where an officer or employee of the corporate employer has authority to commit the corporation opposing counsel must view the officer or employee as an integral component of the corporate party and may not communicate on the subject of the representation with the officer or employee without the prior consent of the attorney representing the corporate party or unless authorized by law to do so.

    References: DR 7-104(A)(1)

TEXT

You state the question as follows: If Plaintiff brings a cause of action against a City Officer in his individual and official capacity, and against the City itself, which is a municipal corporation, and this suit is Defended by a Deputy City Attorney, who specifically are the "parties" that Plaintiff's lawyer is prohibited from communicating with, and what communications are prohibited?

I assume that you are the Plaintiff's attorney. Since the city itself is a party defendant, the naming of a city officer in his official capacity raises no question in that regard not raised by the naming of the city itself as a defendant. (Insofar as the suit against the officer individually is concerned I assume there is no real issue.) The question then becomes, "When a municipal corporation is a party defendant, who for purposes of DR 7-104 are the parties with whom plaintiff's attorney may not communicate absent defendant's attorney's consent?"

A very recent opinion of this Committee addressed and answered that question where the corporate defendant was private and not municipal. CI-535. I do not believe that distinction is relevant or material to this issue, and believe that your question is controlled by that opinion. A copy of that opinion is attached for your reference, and it reasoning and authorities are adopted.

Accordingly, the "party" in your case for purposes of DR 7-104(A)(1) does not include all corporate employees, but only those officers or employees of the defendant municipal corporation who have the power to commit the municipal corporation in the particular action. You may communicate with employees of the municipal corporation who do not fall within that definition and who are not parties to the litigation and are not represented by an attorney, provided that at the outset of any such discussion with such an employee you:

    (a) Identify him or herself as an attorney for a party in pending litigation involving the corporate employer; and
    (b) States the purpose of the communication to the corporate employee; and
    (c) Determines the corporate employee is not a party to the litigation and/or is not represented by an attorney.

The communications prohibited where DR 7-104 applies are those ". . . on the subject of the representation . . . ."

 
     

 

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