June 18, 1980
(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)
Technically, the Committee has no jurisdiction to answer inquiries by individual members concerning the conduct of another attorney, however, since each of you have presented the same ethical question, the Committee will entertain your joint request for an opinion.
You state that one of you represents the plaintiff in an age discrimination suit against a major airline, who is represented by the other attorney. In preparing for trial, plaintiff's counsel informed the defense attorney that he wished to interview various corporate employees of the airlines, outside of the airlines, outside of the presence of the defense attorney, to determine if the employees have any knowledge of the facts of the case and whether the employees would be willing to testify in favor of the plaintiff.
Some of the potential witnesses plaintiff's counsel wishes to contact hold the position of manager of sales and services for various airports throughout the central division of the corporation, while others hold lower supervisory positions and non-supervisory offices at various airports. Plaintiff's counsel concedes that it would be improper for him to interview the president of the company, the vice-president of the company and the head of the company's personnel department, absent defense counsel, but requests the Committee's opinion on whether or not there is any violation of the attorney-client relationship, in communicating privately with potential witnesses not in the "upper echelon" of corporate employees.
The corporate legal department and local defense counsel for the airline object strenuously to plaintiff's counsel talking with any corporate employee concerning affairs of the corporation without defense counsel or a member of the corporate legal staff being present. The potential witnesses are currently employed by the corporate defendant and part and parcel of plaintiff's alleged practice of age discrimination.
DR 7-104(A) is relevant to your inquiry and reads:
"(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."
Clearly, DR 7-104(A)(1) prohibits a lawyer, who is in the course of representing a client, from communicating directly or indirectly about the subject matter of the representation with a "party" who is known to be represented by counsel unless opposing counsel consents to it or unless the attorney is otherwise authorized by law to do so. The answer to your inquiry depends on the interpretation of the word "party," which is not defined in the Code. Certainly, the named corporate defendant is a "party" for purposes of the rule, but should application of the term extend to any and all corporate employees not named as parties to the litigation?
Text writers analyzing the corporate-party issue invariably state that the term "party" should be applied only to executive officers who can be held personally accountable for corporate conduct. This conclusion is based upon the rationale that because corporate and governmental entities many times have exclusive possession of information critical to the litigation of a case, statements of corporate employees may be essential to the opposing party and if the rule were construed to include all corporate employees as parties, the opposing party's ability to gather evidence would be significantly impaired. This reasoning was followed in ABA i 1377. In considering whether it was proper for a law firm that was representing the plaintiff to interview certain officers and employees of the defendant corporation, the ABA Committee stated:
"Where an officer or employee can commit the corporation, opposing counsel must view the officer or employee as an integral component of the corporation itself, and, therefore, within the concept of a party for the purposes of the Code."
See also ABA i 1410, (2/14/78).
The same result was reached by the Michigan Committee on Professional and Judicial Ethics in a fact situation similar to the case you present. In CI-266, counsel for the plaintiff preparing for trial of an alleged employment discrimination case against a University inquired if it was permissible to discuss the case with potential witness employees of the University. The University was represented by an attorney. The employee witnesses of the University were not named as parties to the litigation nor were they represented by a lawyer. The Committee ruled that it was not improper for an attorney representing a client against a University to contact University employees without consent of the University attorney when the employees are not represented by their own legal counsel and they are not managing employees with authority to bind the University. See copy of CI-266 attached for your information.
Balancing the need for ethical conduct against the efficient operation of the adversary system, this Committee sees no justifiable reason to depart from the earlier decisions above-referred to. Accordingly, identification of a "party" for purposes of DR 7-104(A)(1) does not include all corporate employees as parties, but only those officers or employees of a defendant corporation who have the power to commit the corporation in the particular situation. Conversely, it is not improper for an attorney representing a plaintiff, in an age discrimination case against a corporate employer to discuss the case with non-management employees not parties to the litigation and not represented by an attorney provided at the outset of the discussion with any corporate employee, the attorney:
(1) Identifies him or herself as an attorney for a party in pending litigation involving the corporate employer; and
(2) States the purpose of the communication to the corporate employee; and
(3) Determines the corporate employee is not a party to the litigation and/or is not represented by an attorney.