Solicitation by defense counsel: ethical pitfalls when corporate defense counsel offers representation to witnesses.

• Author: Temkin, Barry R.

THE BAN on solicitation by attorneys in ABA Model Rule of Professional Conduct 7.3, and its state counterparts, has generally been used to prevent ambulance chasing by plaintiffs' attorneys. However, a 2010 New York decision has raised the possibility that a defense lawyer could be disciplined for solicitation when offering his services to a non-party witness employed by a corporate defendant, even when doing so for no additional fee. Justice Michael Ambrosio, in Rivera v. Lutheran Medical Center, referred a prominent national law firm to the Departmental Disciplinary Committee and disqualified the firm from representing several current and former employees of the law firm's client, a hospital. (1) The law firm had offered its services to several witnesses in a pending civil employment discrimination matter. The court found this to be solicitation in violation of the New York Code of Professional Responsibility, disqualified the firm, and referred it for disciplinary prosecution. The Appellate Division affirmed.

This decision has been criticized by members of the practicing bar, some of whom had assumed it was appropriate for corporate defense counsel to offer their services to current or former employees or non-party witnesses. (2) Moreover, the Rivera decision sets up a potential conflict with other principles of modern corporate practice. For example, recent authorities have held that a corporation under some circumstances is obligated to furnish a free defense to a current or former corporate employee in the context of a criminal investigation. (3) While the KPMG decision, U.S. v. Stein, (4) addresses a corporation's duty to furnish counsel to a current or former employee in a criminal investigation, the question arises as to who exactly is supposed to be contacting that employee to offer the defense. In circumstances in which a corporation is legally obligated to offer a defense to a former or current employee, is a lawyer proscribed from making the phone call to offer her services?

The same issue may arise in an insurance situation when insurance coverage may be available to a former corporate employee charged with civil wrongdoing. The carrier appoints defense counsel to represent the corporate entity, and then instructs defense counsel to also represent a current or former employee of the company. Does Rivera prevent an attorney from making that call? And does it matter whether the services are offered in a phone call, letter or e-mail?

This article analyzes these questions by providing a brief overview of the relevant ethics rules and the decision of the New York Court of Appeals in Niesig v. Team I. (5)

1. The ABA Model Rules

   By way of background, it is useful to review briefly the ethics rules governing solicitation and contact with represented parties. Some forms of attorney solicitation of prospective clients are banned in ABA

   Model Rule 7.3, which provides in pertinent part that:

   (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

   (1) is a lawyer; or

   (2) has a family, close personal, or prior professional relationship with the lawyer.

   The New York formulation, in New York RPC 7.3, is similar:

   (a) A lawyer shall not engage in solicitation:

   (1) by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client...

   ABA Model Rule 4.2, also known as the "no-contact" rule, bars an attorney from communicating with represented adverse parties. ABA Model Rule 4.2 provides as follows:

   In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. The New York version is quite similar:

   In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. (6) The comments to ABA Model Rule 4.2 indicate that it is not intended to bar contact with all representatives of a represented organization, but is limited to employees in three general categories:

   In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. The New York comment is similar. (7)

   Significantly, the ban on solicitation in current Model Rule 7.3 and its New York counterpart primarily applies to in-person, telephonic and real-time electronic solicitation. The anti-solicitation rules do not apply to other forms of communication. Thus, a lawyer who simply sends a letter offering her services is engaging, generally speaking, in conduct protected by the First Amendment, and not impermissible solicitation. (8) An e-mail, similarly, would not be considered impermissible solicitation, provided it is not misleading and does not run afoul of other ethics rules. (9)

   The Supreme Court has grappled for fifty years with the extent of constitutional protection afforded lawyer advertising. In NAACP v. Button, the Court held that states could not restrict the NAACP from soliciting potential plaintiffs...