November 2, 1999
A lawyer may not employ, retain, or have an association with a non-lawyer/investigator for the purpose of securing communication with a workers' compensation claimant who is represented by counsel about matters that are the subject of the representation.
Neither in-house counsel nor outside counsel representing a self-insured employer against whom an employee has filed a workers' compensation claim may order or otherwise direct communication with the represented employee about matters that involve the subject of the representation.
A lawyer does not violate ethics rules by acquiescing in investigative activities lawfully engaged in by an investigator who is not employed by, retained by, or associated with a lawyer, and whose activities are not at the direction of the lawyer.
References: MRPC 4.2, 5.3, 8.4; RI-153; EC 7-18, Code of Professional Responsibility; ABA Formal Opinion 95-396; Hazard & Hodes 2 The Law of Lawyering; A Handbook on the Model Rules of Professional Conduct, 4.2:101, at 730 (2d ed. Supp. 1993).
The general counsel for a Michigan employer that is self-insured for workers' compensation states that the defense of workers' compensation claims against the employer are administered by a third-party administrator. Investigations are conducted by the third-party administrator staff investigators and private investigators as well. The general counsel for the employer states that all investigators work at the direction of the general counsel and, thus, act as the general counsel's agent when they investigate workers' compensation claims.
The inquirer provides the committee with several "scenarios" concerning specific contacts by an investigator with a represented claimant, which contacts are pretextual. The committee assumes that multiple other scenarios might be described other than those that were provided. However, instead of addressing each specific scenario described by the inquirer, as well as other scenarios that the committee might imagine, the committee provides the guidance rendered in the Syllabus in the belief that it will address not only the specific "scenarios" presented by the inquirer, but those that might be created by application of the committee's collective imagination.
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."
MRPC 5.3 provides in pertinent part:
"With respect to a nonlawyer employed by, retained by, or associated with a lawyer:
"(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
"(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or . . . ."
MRPC 8.4 provides in part:
"It is professional misconduct for a lawyer to:
"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
"(b) engage in conduct involving dishonest, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;. . . ."
The purposes sought to be accomplished by the provision governing contacts with represented parties are well settled. EC 7-18 of the Code of Professional Responsibility stated a general proposition:
"The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of a client with a person he or she knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he or she has the consent of the lawyer for that purpose.
"More specifically, the purposes of the anti-contact rule are to prevent lawyers from taking advantage of uncounselled persons, and to preserve the integrity of the lawyer-client relationship. See Annotated Model Rules of Professional Conduct at 424 (2d ed. 1992); Geoffrey C. Hazard, Jr. & W. William Hodes, 2 The Law of Lawyering; A Handbook on the Model Rules of Professional Conduct, 4.2:101, at 730 (2d ed. Supp. 1993)(Rule 4.2, in conjunction with Rule 4.3, prevents "a lawyer from taking advantage of a lay person to secure admissions against interest or to achieve an unconscionable settlement in a dispute"); United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir 1973) (the anti-contact rule is designed in part to avoid a lawyer's tricking a person into providing damaging admission), cert. Denied 415 U.S. 989 (1974)."
From 1935 to 1971, Canon 9 of the Michigan Canons of Professional Ethics addressed the subject:
Negotiations with Opposite Party
A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should the lawyer undertake to negotiate or compromise the matter with him or her, but should deal only with his or her counsel. It is incumbent upon that lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he or she should not undertake to advise him or her as to the law.
From 1971 to 1988, DR 7-104 of the Michigan Code of Professional Responsibility addressed the subject:
Communicating With One of Adverse Interest
"(A) During the course of his/her representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on representation with a party he or she knows to be represented by a lawyer in that matter unless he or she has the prior consent of the lawyer representing the other party or is authorized by law to do so.
"(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his or her client.
From 1988 to present, Rule 4.2 of the Michigan Rules of Professional Conduct have addressed the subject as quoted earlier in this discussion.
Here, the general counsel for the inquirer directs the activities of the third-party administrator investigators as well as private investigators and considers them to be agents for those purposes. As stated in ABA Formal Opinion 95-396 at 1001:304, referring to Rule 5.3 (see also MRPC 5.3):
"Under these provisions, if the lawyer has direct supervisory authority over the investigator, then in the context of contacts with representative persons, the lawyer would be ethically responsible for such contacts made by the investigator if he or she had not made reasonable efforts to prevent them (Rule 5.3(b)); if the lawyer instructed the investigator to make them (Rule 5.3(c)(1)); or if, specifically knowing that the investigator planned to make such contacts he or she failed to instruct the investigator not to do so (Rule 5.3(c)(2))."
Further, also at 1001:304, the ABA opinion observes:
". . . Rule 8.4(a) provides:
"It is professional misconduct for a lawyer to:
"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so though the acts of another.
"Since a lawyer is barred under Rule 4.2 from communicating with a represented party about the subject matter of the representation, he or she may not circumvent the Rule by sending an investigator to do on his or her behalf that which he or she is forbidden to do. Whether in a civil or a criminal matter, if the investigator acts as the lawyer's "alto-ego," the lawyer is ethically responsible for the investigator's conduct."
Having provided our analysis regarding the circumstances described by our inquirer, we believe that it is helpful and relevant to observe that whether the acts of investigators may be imputed to lawyers for purposes of triggering ethics rules turns upon whether the investigators can be said to have been employed, retained, or associated with the lawyer. For example, where investigators are hired by an insurance company for the purpose of investigating workers' compensation claimants, and the investigators are not working at the direction of the lawyer, but the insurance company, the investigators are agents of the company and not the lawyer. Where the investigators are not "employed by, retained by, or associated with" the lawyer the lawyer does not violate ethics rules by acquiescing in the investigative techniques used by the insurance company's investigators. RI-153.
Here, the general counsel for the employer, subordinates, or outside lawyers hired to assist in the litigation process contemplate directing investigators employed by the third-party administrator or private investigators to engage in communication with employees who have retained their own lawyers and who have filed claims through those lawyers with the Michigan Bureau of Workers' Disability Compensation. Such communication violates the Michigan Rules of Professional Conduct because the lawyers clearly are prohibited from making such communication and are precluded from engaging non-lawyers to do that, which would be unethical for the lawyers to do.