New developments in the law: ex parte communications with current and former employees of a corporate defendant.

• Author: Dempsey, Bernard H., Jr.
• Position: Florida

Prior to May 1, 1997, the propriety and extent of ex parte[1] communications with current and former employees of an adverse party in a lawsuit was far from settled.[2] The Florida Supreme Court had yet to rule on the issue. In the absence of well-settled precedent, courts have had to struggle with the procedure of weighing a plaintiff's need for informal discovery and a defendant's need for effective legal representation. To this date, the United States Court of Appeals for the 11th Circuit has yet to rule decisively on the issue.

Now, however, practitioners and judges have been given some direction in their struggle to determine with whom it is ethically permissible to engage in ex parte communications. On May 1, 1997, the Florida Supreme Court, in H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997), decided that Florida Rule of Professional Conduct 4-4.2 "neither contemplates nor prohibits" an attorney's ex parte communications with former employees of a corporate defendant.[3]

This article will examine the recent cases that have dealt with the issue of ex parte communications with both current and former employees of a corporate party, from the Florida state courts and the United States district courts in Florida.

Ethical Considerations

* Rule of Professional Conduct 4-4.2

The American Bar Association Model Rule of Professional Conduct 4.2, modified and adopted in Florida as Florida Rule of Professional Conduct 4-4.2,[4] is the ethical rule at issue in determining the limits of ex parte communications with former employees of a corporate defendant. The Florida rule provides, in pertinent part:

4-4.2. Communication with person represented by counsel, In representing a client, a lawyer shall not communicate about the subject of the representation with a [party] 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 by law to do so].[5]

The comment to Rule 4-4.2 provides, in pertinent part:

In the case of an organization, this rule prohibits communications by a lawyer for 1 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 the agent's or employee's own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule.[6]

The preceding rule governs the conduct of all attorneys practicing in Florida state courts and federal district courts located in Florida.[7] The scope of Rule 4-4.2, as interpreted by the ABA, The Florida Bar, and various Florida state and federal courts, is discussed below.

* ABA and Florida Bar Ethics Opinions

The American Bar Association Formal Opinion 91-359, entitled "Contact With Former Employee Of Adverse Corporate Party," states that the "prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party."[8] The opinion goes on to state:

While the Committee recognizes that persuasive policy arguments can be and have been made for extending the ambit of Model Rule 4.2 to cover some former corporate employers, the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended. Especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one's case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation.

Accordingly, it is the opinion of the Committee that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer.[9]

The opinion notes, however, that the attorney initiating the ex parte communication must not seek to induce the former employee to violate the privilege attaching to attorney-client communications.[10]

The Florida Bar Committee on Professional Ethics, Opinion 88-14, similar to the ABA opinion, states: "A plaintiff's attorney may communicate with former managers and former employees of a defendant corporation without seeking and obtaining consent of corporation's attorney."[11] The opinion further states that

Nothing in Rule 4-4.2 or the comment states whether the rule applies to communications with former managers and other former employees. To the extent that the comment implies that the rule does apply to these individuals, it is contrary to ethics committees' interpretation of the rule.

Rule 4-4.2 cannot reasonably be construed as requiring a lawyer to obtain permission of a corporate party's attorney in order to communicate with former managers or other former employees of the corporation unless such individuals have in fact consented to or requested representation by the corporation's attorney. A former manager or other employee who has not maintained ties to the corporation (as a litigation consultant, for example) is no longer part of the corporate entity and therefore is not subject to the control or authority of the corporation's attorney....

A former manager or employee is no longer in a position to speak for the corporation. Further, under both the federal and the Florida rules of evidence, statements that might be made by a former manager or other former employee during an ex parte interview would not be admissible against the corporation. Both Rule 801(d)(2)(D), Federal Rules of Evidence, and Section 90.803(18)(e), Florida Evidence Code, provide that a statement by an agent or servant of a party is admissible against the party if it concerns a matter within the scope of the agency or employment and is made during the existence of the agency or employment relationship.[12]

Further, the committee recognized that the purpose of the rule is not to protect a corporate party from revelation of prejudicial facts, but rather to preclude interviewing of employees who have authority to bind the corporation.[13] Just as the ABA opinion noted, The Florida Bar opinion states that an attorney should not inquire into matters that are within the corporation's attorney-client privilege.[14]

Most recently, the ABA came out with another formal opinion that touched on the issue of ex parte contacts with both current and former employees of a corporate defendant.[15] In this opinion the committee stated, with regard to current employees:

If an employee cannot by statement, act or omission bind the organization with respect to the particular matter, then that employee may ethically be contacted by opposing counsel without the consent of in-house counsel. Of course, if individual employees have their own counsel in the matter, then the bar against communication would apply absent consent of that separate counsel. But the fact that an entity is represented by counsel does not prevent communication with all current employees of the represented corporation.[16]

With regard to former employees the committee stated: "It should be noted that Rule 4.2 does not prohibit contacts with former officers or employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed. This Committee so concluded in ABA Formal Opinion 91-359 (1991)."[17]

Florida State Court Opinions

In January 1995 the Second District Court of Appeal decided Barfuss v. Diversicare Corp. of America, 656 So. 2d 486 (Fla. 2d DCA 1995), in which the court placed restrictions on ex parte contact with former employees of a corporate party The court affirmed the trial court's order which prohibited ex parte contact with former employees designated by the corporate defendant as having cared for or treated the plaintiff.[18] The court reasoned that the "limited restriction does not depart from the essential requirements of the law, as the employees who cared for and treated Barfuss are the very persons whose actions or inactions form the basis for the complaint."[19]

The court grounded its decision on the assumption that an employee who can be considered a "party" because of his or her position and knowledge will remain a party even after the employee leaves the corporation and, therefore, the corporation continues to have a vital interest in the employee's knowledge of privileged information and its potential release to opposing counsel.[20] In addition, the court appears to have based its holding on the rationale that former employees' actions or inaction in connection with the matter at issue may be imputed to the corporation and, therefore, could result in vicarious liability for the employer.[21] Further, the court noted that there is no restriction on contact with former employees who were merely witnesses to the care of the plaintiff.[22]

The Barfuss court reconciled its holding with an earlier opinion[23] in which it affirmed a circuit court's denial of a motion for protective order which sought a blanket prohibition against contact with all former employees of a nursing home. The court explained that its affirmance in Keiser was without prejudice to file a more specific motion for protective order.[24]

Subsequently, the Third District Court of Appeal, in Reynoso u. Greynolds Park Manor, Inc., 659 So. 2d 1156 (Fla. 3d DCA 1995), held that the ex parte proscription of Rule 4-4.2 does not extend to former corporate employees.[25] The court stated that the question...