Ex Parte Interviews With Former Employees After Aiken v. Business and Industry Health Group, Inc. No Longer a Non-contact Sport
| Publication year | 1996 |
| Pages | 34 |
65 J. Kan. Bar Assn. January, 34 (1996). EX PARTE INTERVIEWS WITH FORMER EMPLOYEES AFTER AIKEN v. BUSINESS AND INDUSTRY HEALTH GROUP, INC. NO LONGER A NON-CONTACT SPORT
January, 1996
Copyright (c) 1996 by the Kansas Bar Association; Mark A. Buchanan
WESTLAW LAWPRAC INDEX
ETH -- Ethics & Conflicts of Interest
I. INTRODUCTION
In Aiken v. Business and Industry Health Group, Inc., [FN2] the court held that Rule 4.2 of the Model Rules of Professional Conduct does not prohibit a lawyer from interviewing former employees of a corporation ex parte, in order to gather information about the lawyer's case. [FN3] Before Aiken, no Kansas court had directly confronted the issue of whether former employees could properly be contacted ex parte. The court interpreted Kansas law to conform to the view followed by the majority of other courts that have considered this issue. [FN4] Rule 4.2 of the Model Rules of Professional Conduct provides:
In representing a client, a lawyer shall not 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 consent of the other lawyer or is authorized by law to do so. [FN5]
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After Aiken, counsel for a party bringing suit against a corporation or other organizational party now has informal access to witnesses who may have knowledge of critical facts, without the burden of engaging in time-consuming and expensive formal discovery.
This article will review the Aiken decision, and its interpretation of the term "party" as used in Rule 4.2 of the Kansas Model Rules of Professional Conduct. It discusses the differences between the former "managing-speaking agent" test and the new, bright-line rule adopted by the court permitting contact with all former employees. The author concludes that the decision heralds significant changes for pretrial investigation and case preparation, both for lawyers representing plaintiffs and organizational parties.
II. THE AIKEN DECISION AND ITS INTERPRETATION OF MODEL RULE 4.2
A. PROCEDURAL POSTURE AND FACTUAL BACKGROUND
The plaintiff in Aiken was a physician who had been employed with the Business and Industry Health Group (BIHG), an operating division of the defendant Employer Health Services, Inc. The plaintiff contended that the defendant wrongfully fired him, in violation of public policy, and that his termination breached a covenant of good faith and fair dealing implied in the parties' employment contract. BIHG contended that it had received a number of complaints concerning Dr. Aiken's performance, which resulted in his termination.
Plaintiff's counsel sought to interview ex parte five former employees of BIHG, including a physician and two former account executives for the Kansas City area where plaintiff was employed. The plaintiff's attorney was particularly interested in learning about the former employees' knowledge of plaintiff, defendant's methods of operating, the way in which those methods exposed defendant's "core values," and the techniques which the defendant used to exert control over its employees. [FN6] In a strongly worded and comprehensive opinion, Judge Lungstrum adopted a bright-line rule allowing lawyers to interview ex parte all former employees of corporate parties.
BIHG moved for a protective order on the grounds that such ex parte interviews would violate Rule 4.2 of the Model Rules of Professional Conduct, as adopted by the Kansas Supreme Court. [FN7] Relying on Chancellor v. Boeing Company, [FN8] and other authorities, BIHG argued that a lawyer should not be permitted to contact a former employee of a represented corporate party, if that former employee's conduct might be imputed to the corporation. [FN9]
In urging the court to follow Chancellor, BIHG relied on three main arguments. First, while the text of Rule 4.2 refers only to "a party," former employees are not expressly excluded by the text of the Rule, or its official Comment. Second, while the Rule uses the term "a party," the Comment uses the term "persons" to describe those who may not be contacted ex parte. [FN10] BIHG argued that
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this term should be broadly construed to include former employees, not merely represented parties. Third, BIHG argued that the latter interpretation had been accepted by the Ethics Advisory Committee of the Kansas Bar Association, which issued an Opinion on October 23, 1992, advising regarding the circumstances in which lawyers may contact former employees. [FN11]
B. THE "PLAIN MEANING" OF MODEL RULE 4.2
Judge Lungstrum carefully considered and rejected each of BIHG's arguments. The court first turned to the language of the Rule itself, observing that the text of the Rule only refers to communications with a represented "party," [FN12] and the former employees that plaintiff's counsel wanted to interview were not parties to the litigation. [FN13] With regard to the Comment's reference to "persons," the court observed that the Kansas Supreme Court adopted the Comment to Rule 4.2, only "to the extent it was not inconsistent with" the Model Rules, as adopted in Kansas statutory and case law. [FN14] The court held that the Comment cannot be construed to change the language of the Rule. [FN15]
Relying on the "plain meaning" of the words used by the drafters of Rule 4.2, the court held that the drafters' intent must have been not to cover former employees:
Unless one were to broadly construe the term "party," the language of Rule 4.2 does not on its face involve, or in any way prohibit, ex parte contact with former employees. There is no indication in the text of Rule 4.2 that such a construction is warranted or was contemplated by the rule's drafters. The plain meaning of the phrase "party the lawyer knows to be represented by another lawyer in the matter" means a party to the litigation. [FN16] The court noted that some courts have interpreted the Rule restrictively, to permit contact with former employees only subject to certain restrictions. [FN17] However, those cases had focused mainly on the Comment to Rule 4.2, rather than the text of the Rule itself. [FN18]
1. The ABA Formal Opinion
In reaching its decision, the court also emphasized that the American Bar Association Committee on Ethics and Professional Responsibility had issued a Formal Opinion in March 1991 expressly endorsing contact with all former employees. [FN19] The Committee found that Rule 4.2 does not apply to former employees, under any of the three situations described in the Comment to the Rule. [FN20] The court stated that after the ABA Committee issued its Formal Opinion on Rule 4.2, the court could not locate any case declining to follow the ABA's interpretation of the Rule. [FN21]
In August, 1995, the ABA Committee issued another Formal Opinion, in which the Committee reaffirmed that former employees are excluded from the scope of Rule 4.2. [FN22] The Committee also concluded the Rule 4.2 does not allow the attorney for an organizational party to issue a blanket prohibition against contacts with all current employees. [FN23]
2. Chancellor v. Boeing Company
After concluding its analysis of the text of Rule 4.2, the court turned its attention to the Chancellor case relied on
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by BIHG. In Chancellor, Judge Crow ruled that under D.R. 7-104(A)(1), the predecessor to Model Rule 4.2, a lawyer may not interview current or former employees of a corporate party, if those employees have authority to bind the corporation by their statements or conduct. [FN24] The court in Chancellor thus adopted the so-called "managing-speaking" test. [FN25]
Judge Lungstrum first noted that Chancellor had predated by three years the ABA's Formal Opinion approving ex parte contacts with former employees. [FN26] Also, because the court in Chancellor cited another ABA opinion with approval, Judge Lungstrum said it was probable that the Chancellor court would likewise have been influenced by the ABA's current position. [FN27]
Second, the court in Aiken noted that the specific issue in Chancellor was contacting current employees, and therefore any discussion of former employees was necessarily dicta. [FN28] The court therefore determined that Chancellor was not binding precedent. [FN29]
Third, the court reasoned that Chancellor's reliance on the Comment to Rule 4.2, and its discussion of "persons" who may impute liability to the corporation, was misplaced. The Kansas Supreme court had only adopted the Comment to the extent it was not inconsistent with the Rule itself. The court said:
The court believes that the Comment to Rule 4.2 is inconsistent with the Rule itself to the extent that it expands, or attempts to expand, the plain meaning of the term "party" to include persons with no current employment relationship with the organizational party. [FN30] Thus, the court held that the clear intent of the rule must prevail over the advisory language contained in the...
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