February 1, 1990
In order to determine for a client whether there is a valid claim for wrongful discharge against a former employer, a lawyer may contact present and former clerical employees of the company without consent of opposing counsel, if the statements of the employees cannot be imputed to the company or constitute an admission of the company, and if the lawyer does not state or imply that the lawyer is disinterested.
References: MRPC 4.1, 4.2, 4.3; R-2; RI-39.
A client was fired from a company for alleged sexual harassment of three clerical employees, one of whom has since left the company. The former clerical employee has told the client that, prior to the clerical employees' providing individual statements of sexual harassment, the clerical employees were advised that the client's employment had already been terminated.
The client's lawyer asks whether, without consent of company inside counsel, it is appropriate to communicate with the present and former clerical employees in determining whether a wrongful discharge claim is valid.
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."
The Comment to MRPC 4.2 elaborates on the use of the word party to include "persons having managerial responsibility on behalf of the organization, and . . . any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization."
In R-2 plaintiff's counsel wanted to communicate with nurses who were current and former employees of the respondent hospital corporation without consent from hospital counsel. The Committee noted that the litigation had already been filed, and held that plaintiff's counsel could not contact current employees, but could contact former employees pursuant to MRPC 4.3.
In RI-35 the Committee held that 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 a government entity, even if the lawyer knows the entity is generally represented by a particular counsel.
Contrary to R-2, the situation in this inquiry is contacting employees prior to filing litigation, to determine whether there is a valid claim. Contrary to RI-35, the situation in this inquiry is to recontact at least one employee who voluntarily offered information relating to the matter to the client, and it is not clear whether the employees statement may be imputed to the company.
Pursuant to MRPC 4.2 Comment, the lawyer may not contact the clerical employees if their acts or omissions may be imputed to the organization, or if their statements may constitute an admission of the organization. In a case brought for wrongful termination, the employees' statements of alleged sexual harassment, if true, are not imputed to the company, and are not an admission of the company. If the statements are untrue, they may be imputed to the company to the extent the company has acted in reliance on those statements without appropriate confirmation or investigation. If the employees' statements on the time at which the allegations were made to the company are truthful, it may at most be an admission against the interest of the company. If the statements on the time are untruthful, it would not be an admission or imputed to the organization. It would seem in a wrongful termination cause of action, the employees whose actions or omissions are imputed to the company, or whose statements constitute an admission, are those employees who acted upon the information from the clerical employees, i.e., those employees who terminated the client. It is irrelevant to the lawyer's ethical duties under MRPC 4.2 that the former clerical employee volunteered information about the matter to the client.
If MRPC 4.2 does not prohibit the lawyer from contacting the clerical employees, then MRPC 4.3 applies to such contact. MRPC 4.3 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."
In addition, to satisfy the conditions of MRPC 4.3, MRPC 4.1 must be followed. MRPC 4.1 and Comment state in part:
"In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.
". . . Making a false statement may include the failure to make a statement in circumstance in which silence is equivalent to making such a statement."
Under MRPC 4.3 the lawyer is forestalled from offering advice to the unrepresented clerical employee. The lawyer must, however, convey the true nature of the lawyer's interest in the matter so the unrepresented clerical employee can determine whether to continue the contact without obtaining counsel or contacting the company.
Therefore, the lawyer may contact present and former clerical workers of the company which fired the client, provided that the provisions in MRPC 4.1 and 4.3 are followed.