April 21, 1989
A lawyer representing a corporation may request that corporation employees not discuss pending litigation with opposing counsel or outsiders.
Once suit has been filed, plaintiff's counsel may not communicate with nurses who cared for the client at the time the alleged malpractice occurred and who are currently employed by defendant corporation, unless hospital counsel consents.
Nurses who cared for the client at the time the alleged malpractice occurred and who are not currently employed by defendant hospital, who owe no continuing duty to the corporation, who are not privy to privileged information of the corporation, and who have no ongoing relationship to the corporation, are not "parties" within the provisions of MRPC 4.2 and may be contacted by plaintiff's counsel without the consent of hospital counsel.
Whether home addresses of corporate employees should be disclosed in response to a discovery request is a question of law beyond the jurisdiction of the Committee.
References: MRPC 3.4(f), 4.2, 4.3; C-88, C-163; Upjohn Co. v. United States, 449 US 383, 66 L Ed 2d 584, 101 S Ct 677 (1981); MASSA v. Eaton Corp., 109 FRD 312 (WD Mich 1985); Wright v. Group Health Hospital, 691 P2d 564 (Wash 1984); Mills Land and Water Co. v. Golden West Refining Co., 186 Cal App 3d 116 (Cal App Ct 1986); Hewlett-Packard Co. v. Superior Court, 252 Cal Rptr 14 (1988). C-141 and CI-70 are superseded; CI-526 and CI-535 are superseded to the extent inconsistent with this opinion.
Counsel for a defendant corporation hospital asks whether counsel may inform hospital employees that they should not discuss any aspects of a lawsuit with plaintiff's counsel or outsiders, unless questioning occurs during a deposition or in a courtroom under subpoena. Second, counsel questions whether the home addresses of the employees of the defendant corporation hospital may be withheld from opposing counsel.
Counsel for plaintiff in this litigation has also written to the Committee asking for an opinion as to whether counsel may communicate with nurses who cared for the client at the time that the alleged malpractice occurred. Some of the nurses are no longer employees of the hospital.
The questions posed by plaintiff and defense counsel arise out of litigation already initiated against the defendant hospital for an injury suffered when plaintiff fainted and fell off a commode onto the hospital floor. Plaintiff alleged that agents of the hospital failed to warn other agents, employees and staff members of the hospital that plaintiff was susceptible to fainting. Additional allegations in the suit include failure to utilize available accommodations, services and/or staff for the protection of plaintiff and failure to properly select, train and supervise hospital staff.
1. MAY HOSPITAL COUNSEL INSTRUCT HOSPITAL EMPLOYEES THAT THEY MAY NOT DISCUSS A PENDING LAWSUIT WITH PLAINTIFF'S COUNSEL OR OTHER OUTSIDERS?
MRPC 3.4(f) states:
The comment to the Rule states that a lawyer may advise employees of a client to refrain from giving information to another party, because the employees may identify their interests with those of the client.
Hospital counsel may request that present employees (including nurses), whether or not involved with plaintiff's incident, not discuss any aspects of the pending litigation with any outside parties or plaintiff's counsel because the employees' interests are obviously identifiable with those of the hospital. Litigation could be initiated against those employees directly involved in the incident while employees who were not involved could make statements about hospital procedure that could be binding upon the corporation hospital as admissions. Hospital counsel should advise the employees that they have the right to seek independent counsel to represent them in any phase of this litigation and that they may discuss the case with any attorney with whom they confer. Therefore the request not to discuss the case does not apply to communications with the employee's own attorney.
2. MAY PLAINTIFF'S COUNSEL COMMUNICATE WITH PRESENT AND FORMER EMPLOYEES OF DEFENDANT CORPORATION?
MRPC 4.2 and comment state:
"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 lawyer or is authorized by law to do so.
"This rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.
"In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with 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. If an agent or employee of the organization is represented in the matter by separate counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule. Compare Rule 3.4(f).
"This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." Emphasis added.
The text is repeated at length here to show the extent of ground in the Comment that is not explicit in the text of the Rule. The Rule talks about communication with a party; the Comment states that when the "party" is an organization, communications are prohibited with (a) persons having managerial responsibility, (b) any other person whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability, and (c) any other person whose statement may constitute an admission on the part of the organization.
The comment language is derived from Federal Rules of Evidence 801(d)(2)(D) making such admissions not hearsay. Those who can hurt or bind the organization with respect to the matter at hand are off limits except for formal discovery or except with the consent of the entity's lawyer.
According to MRPC 1.0(c), the text of the rule is authoritative and the Comment does not expand or limit the scope of the obligations, prohibitions and counsel found in the text. However, interpretations of the rule text must be made in conjunction with existing statutes, other court rules, and case law on the issues.
In 1983 the U.S. Supreme Court determined that middle management and lower employees can embroil the organization in legal difficulties, through actions in the scope of their employment, that they frequently have information relevant for and needed by the organization counsel, and the counsel's advice is frequently more significant to lower employees since they put corporate policies into effect. Communications between those employees and the organization counsel are privileged. Upjohn Co. v. United States, 449 US 383, 66 L Ed 2d 584, 101 S Ct 677 (1981). Opposing counsel was not prohibited from talking to the Upjohn employees. In 1985 the US Federal Court for the Western District of Michigan found that communication by opposing parties or their agents with managerial employees of an organization is a prohibited ex parte communication. MASSA v. Eaton Corp., 109 FRD 312 (WD Mich 1985).
We are now asked to determine whether the proscription in MRPC 4.2 reaches nonmanagerial employees and former employees of a party which is an organization, where the organization counsel does not consent to prediscovery communication by opposing counsel. On the one hand, a broad interpretation of the Rule safeguards against the risk that a party whose counsel is by-passed might unwittingly make statements to opposing counsel that could prejudice the party's interest at trial. On the other hand, a broad interpretation may be at odds with the goal of permitting access to witnesses in order to uncover and present all relevant evidence to the trier of facts.
MRPC 4.2 allows the counsel of a party to control the circumstances under which an opposing counsel communicates with the party. This control is limited to communications about "the subject of the representation" and to communications with the "party." "The subject of the representation" should be construed to apply to the situation in controversy and not to matters outside the area of controversy. ABA Op 66 (1932). Thus, counsel communications about peripheral matters, such as the location or identity of witnesses, are not prohibited by the Rule.
Upjohn has settled the question of whether lower level employees are covered by attorney-client privilege with the organization counsel. At least one court has found that a client covered by the attorney-client privilege is not always a "party" under the Rule. In Wright v. Group Health Hospital, 691 P2d 564 (Wash 1984), the court stated that when a "party" in a matter is an organization, counsel must determine which persons by virtue of their authority are able to bind the organization. In accord, Alaska Ethics Op 84-11, a plaintiff's lawyer may communicate directly with an employee of the defendant agency without the consent of defendant's counsel provided that the employee may not reasonably be thought of as representing the agency in matters related to the matter in controversy.
Read together with Rule 4.2, these decisions reach a consensus that a nonmanagerial employee, under the facts and circumstances of an individual case, may be a "person whose act or omission in connection with that matter may be imputed to the organization . . . or whose statement may constitute an admission . . . ." Comment, Rule 4.2.
The inquiry before us states that plaintiff's counsel wants to interview "nurses who cared for my client at the time the alleged malpractice occurred." All the nurses were employees of the hospital at the time of the incident, although some are no longer employees. Under the rationale of Upjohn and Wright, nurses currently employed at the hospital and who cared for the plaintiff at the time of the alleged malpractice are persons whose acts or omissions may be imputed to the organization, or whose statement may constitute an admission. Plaintiff's counsel should not communicate with those nurses without consent of hospital counsel.
With regard to former employees of an organization, in The Law of Lawyering, Prentice-Hall, 1988 Supplement, pp. 436-436.1, authors Hazard and Hodes state:
"[4.2 and Comment do] not address communications with former agents and employees, and technically these should be no bar, since former employees cannot bind the organization, and their statements cannot be introduced as admissions of the organization. Speaking with a former employee therefore does not do damage to the policy underlying Rule 4.2 -- undercutting or 'end-running' an on-going lawyer relationship. See Bar Association of the City of New York, Inquiry Ref. No. 80-46 (1980).
"Yet it seems clear that some former employees continue to personify the organization even after they have terminated their employment relationship. . . ."
Two jurisdictions which follow the ABA Model Code of Professional Responsibility, Colorado and California, appear to follow that rationale for former employees. The Colorado Ethics Committee determined that a lawyer may not interview a present or former employee of an adverse party organization without the prior consent of opposing counsel if the employee has or had the legal authority to commit the organization to a position regarding the subject
matter of the litigation. Colorado Op 69. Where an employee still owes a duty to the organization, is privy to privileged information, entitled to attend meetings, or has an active ongoing relationship with the entity, it is improper for opposing counsel to contact the employee. Mills Land and Water Co. v. Golden West Refining Co, 186 Cal App 3d 116 (Cal App Ct l986); Hewlett-Packard Co. v. Superior Court, 252 Cal Rptr 14 (1988). See also, Florida Op 88-14 (3/7/89), stating that a former employee who has not maintained ties to the corporation, is not subject to the control or authority of the corporate lawyer, and is no longer in a position to speak for the corporation, is not covered under Rule 4.2. None of these factors are present in this inquiry regarding contact with former employee nurses.
". . . lower level and uninvolved former employees are properly analyzed as free witnesses who may be interviewed by a lawyer opposing the organization . . . . As for intermediate and higher level former employees, it would seem that they should be allowed to decide for themselves whether they are still so attached to the organization as to refuse to give statements except in the presence of the organization's lawyer." Hazard and Hodes, p 436.1
Although former employees who cared for plaintiff at the time of the alleged malpractice are not "uninvolved" in the matter, sufficient protection is provided under MRPC 4.3:
"Rule 4.3 Dealing With an Unrepresented Person
"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."
Thus, pursuant to MRPC 4.3 plaintiff's counsel may communicate with nurses who are former employees of the hospital corporation without consent from hospital counsel.
3. MAY HOSPITAL COUNSEL DENY A DISCOVERY REQUEST FOR HOME ADDRESSES OF HOSPITAL EMPLOYEES?
Hospital counsel wants to deny a discovery request from plaintiff's counsel to provide the home addresses of present hospital employees. Hospital counsel believes the addresses were given in confidence. Counsel did not indicate if individual employees gave the addresses during consultation on the case or if the hospital provided counsel with the addresses.
Determination of the privileged status of specific information and the propriety of refusing discovery requests are questions of law beyond the jurisdiction of this Committee. Counsel should present such issues to the tribunal by motion or other appropriate procedure.