December 13, 1989
A lawyer investigating a client's claim and/or seeking to resolve a possible claim prior to litigation, may direct communication to the governing body or any employee or agent of the entity, even if the inquirer knows such entity is generally represented by a particular counsel.
References: MRPC 4.2, 4.3; R-2; CI-1206; ABA i1377.
On behalf of a potential client a lawyer wishes to investigate the client's claim and/or seek to resolve the possible claim prior to filing litigation. The lawyer asks whether the lawyer may write a letter directly to a decision-making employee or agent of the entity which may become the opposing party. Further, the lawyer asks whether it makes any difference that the entity is public, and the lawyer's letter is to decision-making public employees or agents of that entity, or whether the lawyer knows or could reasonably determine the entity is generally represented by counsel or a general counsel office.
MRPC 4.2 states:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
After a thorough review of later cited case decisions, ethics opinions, and learned dissertations, the ultimate issue is how to balance the need for legitimate investigation and fact-finding on the one hand and the need of an entity to protect itself from possible prejudice on the other. The better reasoned consensus would dictate that an initial letter of inquiry or of suggestive resolution may be directed to an entity or any person then active within that entity, for by definition there would be no lawyer who was representing the respondent "in the matter" at that particular time since the existence of a controversy has not been confirmed. See CI-1206 (1988); Nassau County Op 85-3 (1985); Arizona Op 87-25 (1987); New Hampshire Op 1984-5/4 (1987).
In making the contact the lawyer must comply with MRPC 4.3, which states:
"In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
"An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel."
If the respondent wishes to aid in the investigation or to enter into resolution discussions, that is the respondent's choice. Likewise, should respondent wish to refer that particular matter to personal or entity counsel, that is a legitimate alternative.
If counsel for the entity now appears, communication and/or inquiry can still be made to any entity employee, if entity counsel consents. If counsel for the entity does not consent to communication and/or inquiry to the present entity employees, then the lawyer must evaluate the status of the particular agent or employee to whom questions may be directed. The distinction between non-managerial and managerial employees rests not only upon respective titles and duties, but on what legal effect they may have upon the entity by reason of their various responses to inquiries. If employees are "non-managerial level," inquiry can be made without consent of opposing counsel only when the employee's act or omission would not be imputed to the entity pursuant to agency law theories, or when the employee's statement will not constitute an admission of the entity pursuant to Michigan Rules of Evidence, Rule 801(d)(2)(D). If employees are "management level," contact should not be made unless the employee disavows that entity counsel represents the employee's interest. See Comment to MRPC 4.2; West Virginia Op 87-01, (1/12/87); Wright v Group Health, 691 P2d 564 (Wash 1984); MASSA v Eaton Corp, 109 FRD 312 (D.C.W. Mich. 1985); Obligations to Third Parties, ABA/BNA Lawyers Manual on Professional Conduct, #65, sect 71:301 to 307 (6/22/88); Upjohn v United States, 449 US 383(1981); see considerations outlined in R-2.
Generally, the rules that apply to communications with corporate officers and employees also apply to communications with governmental parties, officers and employees. See ABA i1377. The Comment to MRPC 4.2 indicates a party, and by implication party counsel, has the right to communicate with "government officials" about a pending matter, without entity counsel consent, when "authorized by law." Since this inquiry involves a public university, this aspect of the rule is raised, but its resolution is not necessary to respond to the questions as posed.
Therefore, it is not a violation of MRPC 4.2 for a lawyer, either representing a client or authorized to investigate a matter for a potential client, to make direct contact by letter to a decision-making employee or agent of an entity in order to investigate and/or seek to resolve a possible claim prior to litigation. It does not matter whether the inquiry is made to a public as opposed to a private entity. It does not matter that the lawyer knows or could reasonably determine that the entity is generally represented by counsel or office of general counsel.