January 19, 1993
A lawyer does not violate ethics rules by acquiescing in investigative activities lawfully engaged in by someone who is not employed by, retained by or associated with the lawyer.
References: MRPC 4.2, 4.3, 5.3; Upjohn v. Aetna, 191 US Dist Lexis GG2; 1991 WL 490026 (WD MI, 1991).
An insurance company frequently seeks outside counsel to defend workers' compensation claims. Some files referred to counsel are in litigation, others are referred prior to litigation being filed. Some files referred to counsel include completed investigative reports prepared by the insurance company's in-house investigation unit; in some cases the investigation may have been completed, but the report has not been written; in some cases the investigation is still in progress, or no investigation has been conducted at all.
Outside counsel has become aware that the insurance company's investigators sometimes use pretexts to determine whether claimants will exceed their alleged physical limitations. In one instance, the investigator purportedly sought directions at the retail establishment where the claimant was employed. During the course of the conversation with the claimant, the investigator stated he had found a bag of dog food in the back of the investigator's rental car, and asked whether the claimant knew anyone who would want the dog food. The claimant said he wanted the dog food, and removed it from the car. In a second instance, the investigator parked near a claimant's residence and placed a canoe on the ground near the car. The investigator knocked on the claimant's door, purportedly to use the telephone to call a family member because the canoe had fallen off the car. The claimant offered to place the canoe on the car, and was filmed doing so.
The outside counsel asks whether ethics rules apply to the conduct of the client's investigators, and whether the lawyer may use the surveillance results at trial.
The admissibility of the surveillance results is a question of law, not ethics, and therefore will not be further considered.
Whether the acts of the investigators may be imputed to the lawyer for purposes of triggering ethics rules turns upon whether the investigators can be said to have been employed, retained, or associated with the attorney. MRPC 5.3.
In Upjohn v. Aetna, 191 US Dist Lexis GG2; 1991 WL 490026 (WD MI, 1991), Aetna's lawyers hired investigators to interview former employees of Upjohn to disclose more information about environmental damages that were the underlying subject matter of litigation. The magistrate had found that the investigators had failed to determine whether the former employees were represented by counsel, failed to clearly identify themselves as working for lawyers in litigation against Upjohn, and failed to adequately state the purpose of the interviews. The court upheld the magistrate's decision that the investigators misled the former employees, that if conducted by a lawyer the contacts would violate MRPC 4.3, and that through operation of MRPC 5.3, the lawyer could not accomplish the deception, intentionally or unintentionally, by hiring a nonlawyer. The evidence obtained through those contacts was excluded. The court considered Aetna's argument that the lawyer did not order, ratify or timely know of the investigators' conduct, but held that the magistrate's finding that to exonerate the investigators' conduct on that ground would render the ethical proscription in MRPC 4.3 meaningless, was not clearly erroneous or contrary to law particularly where Aetna offered no evidence demonstrating reasonable efforts to comply with MRPC 4.3.
Upjohn is clearly distinguishable from the situation under consideration here. In this inquiry the investigators were not hired, employed or retained by the lawyer, but by the insurance company. The investigators are agents of the company, not agents of the lawyer. Accordingly, they are not encompassed by the professional rules applicable to lawyers.
While this answers the specific question posed by the lawyer, a related question is whether the investigators' conduct constitutes impermissible, direct contact with the claimant. MRPC 4.2 and 4.3 state:
Rule 4.2."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."
Rule 4.3."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."
Both of these rules concern specific conduct by the lawyers themselves, and, as noted in Upjohn, MRPC 5.3 would also extend their application to direct agents acting on behalf of and at the direction of the lawyers. Since the investigators are not "employed by, retained by or associated with" the lawyer under MRPC 5.3, the lawyer does not violate ethics rules by acquiescing in the investigative techniques used by the company's investigators.
With respect to the subject of communication, the comments in the ABA/BNA Lawyers Manual of Professional Conduct, 71:303, are particularly relevant. It is pointed out that while the ABA Model Rule 4.2 (identical to MRPC 4.2) prohibits a lawyer from communicating directly with the opposing party, the rule does not include a prohibition against the parties speaking to one another. Further, the comment notes that the ABA had, in fact, withdrawn a former ethics opinion which had indicated that lawyers had a duty to dissuade the parties from communicating with one another.
The scenarios provided in this inquiry involve communications between parties, not between a lawyer and the opposing party. In neither scenario was the claimant persuaded or encouraged to do anything. The claimants acted in a manner that they wished and felt capable of doing.