How Not to Lose the Winning Witness: Ethical Considerations in Working with Employee and Former Employee Witnesses.

• Author: Harrell, Jessie L.

Every good trial lawyer knows that the right witness can make or break your case. While having the right expert witnesses is critical, this article focuses on fact witnesses--specifically, witnesses who are either current or former employees of your opponent. There are numerous traps for the unwary in dealing with such witnesses. The consequences of a misstep range from losing the ability to call the witness at trial to being disqualified from representing your own client. With the stakes so high, knowing the limitations before you begin communicating with an employee witness is critical.

Can You Talk to Employee Witnesses At All?

First and foremost, you must determine whether your witness is a current or former employee. Under the Florida Rule of Professional Conduct 4-4.2, a lawyer "must 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." The comments to the rule clarify that in dealing with an organizational party, a lawyer may not communicate with three classes of employees of a represented organization: 1) "persons having a managerial responsibility on behalf of the organization"; 2) "any other person whose acts or omission in connection with that matter may be imputed to the organization"; or 3) a person "whose statement may constitute an admission on the part of the organization." (1) However, while the comments identify the class of current employees who are off-limits, the rule also provides, "Consent of the organization's lawyer is not required for communication with a former constituent." (2)

This language tracks the Florida Supreme Court's opinion in H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997), in which the court held "that Florida Rule of Professional Conduct 4-4.2.. .does not prohibit a claimant's attorney from engaging in ex parte communications with former employees of a defendant-employer." (3) In that case, the court looked to F.S. [section]90.803(18)(e), which provides that a statement by an agent of a party is only a binding admission if it concerns a matter within the scope of the agency and is made during the existence of the agency or employment relationship. (4) The court also examined the ABA Committee's interpretation of Model Rule 4.2, which provided that the rule "does not prohibit contacts with former officers and employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed." (5) Thus, because former employees can no longer bind an employer, communication with them is not prohibited.

As with most things in law, there are important caveats to this general holding. First, if the lawyer knows that the former employee is represented by counsel, ex parte communications are prohibited under the rule. Second, the lawyer must not attempt to obtain privileged information from the former employee. (6) A lawyer who obtains privileged information from a former employee risks disqualification of himself and the witness. (7)

The harder question is whether you can communicate with current employees of your adversary. Obviously, under the comments to the rule, you can eliminate speaking to witnesses with managerial responsibility or those whose acts or omissions led to the lawsuit. But how can you safely determine whether a current employee's statement could constitute an admission? Wouldn't any helpful information necessarily relate to matters within the scope of their agency? The answer is: not necessarily. The caselaw provides some guidance.

In Lee Memorial Health System v. Smith, 56 So. 3d 808 (Fla. 2d DCA 2011), the appellate court was called on to decide whether a plaintiff's attorney in a medical malpractice action could speak with his client's treating physicians even though they were also employees of the defendant hospital. Consistent with Rule 4-4.2, the court looked to see if the treating physicians fell within any of the prohibited categories of employees. (8) However, the defendant-employer offered no evidence that 1) any of the child's treating physicians supervised, directed, or consulted with the defendant's lawyers concerning...