III. Communications with Current and Former Employees

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

III. Communications with Current and Former Employees

We have so far briefly examined some aspects of lawyers' ex parte communications with current and former employees of organizational litigants, and it should be clear from that limited exposure that these exchanges are potentially perilous. Even in jurisdictions that specifically exclude former employees from Rule 4.2's reach, such ex parte communications still give rise to numerous disputes. Nonetheless, it is possible to safely communicate with former employees, as Muriel Siebert & Co. v. Intuit Inc.¹⁰¹ illustrates.

There, Nicholas Dermigny, Muriel Siebert's executive vice president and COO, was an important participant in the events giving rise to Intuit's suit against Muriel Siebert. He was also instrumental in formulating Muriel Siebert's defense to the Intuit litigation. Two years into the case, Muriel Siebert terminated his employment. Upon learning of his termination, Intuit's lawyers arranged to interview him without Muriel Siebert's knowledge. Before beginning the interview, Intuit's lawyers advised Dermigny that he should not reveal any confidential or privileged information, including any conversations with Muriel Siebert's counsel, nor offer any information concerning Muriel Siebert's legal strategy.¹⁰² Intuit's lawyers further cautioned Dermigny that if asked a question during the interview that could lead to the disclosure of such information, he should tell them and decline to answer.¹⁰³ The Intuit lawyers then questioned Dermigny about the underlying facts of the case, but did not elicit any privileged information or inquire about Muriel Siebert's litigation strategy. Muriel Siebert moved to disqualify Intuit's counsel and to enjoin them from using any information provided by Dermigny. The trial court granted Muriel Siebert's motion, but a lower appellate court reversed. The lower appellate court then certified the case to the court of appeals, which is New York's highest court.

The court of appeals noted that while lawyers may generally communicate ex parte with an adversary's former employees, that right is not a license to elicit confidential or privileged information from them.¹⁰⁴ The disqualification of Intuit's counsel was not warranted, however, merely because Dermigny had been privy to Muriel Siebert's confidential and privileged information.¹⁰⁵ Intuit's lawyers had advised Dermigny of their representation and interest in the litigation, and cautioned him against revealing information to which they were not entitled.¹⁰⁶ Dermigny understood their admonition and disclosed no confidential or privileged information. Accordingly, there was no basis to disqualify Intuit's counsel.¹⁰⁷ The court in Muriel Siebert therefore affirmed the lower appellate court.

Postorivo v. AG Paintball Holdings, Inc.¹⁰⁸ stands in stark contrast to Muriel Siebert. In Postorivo, lawyers for the defendant repeatedly communicated ex parte with former employees of one of the plaintiffs. The plaintiffs therefore sought sanctions against the defense lawyers, even though the defense lawyers did not obtain any confidential or privileged information as a result of the communications. The defense lawyers argued in response that the communications were proper because they had not even inquired into privileged communications or information. Unfortunately, before speaking with the former employees, the defense lawyers had not cautioned them against revealing confidential or privileged information.¹⁰⁹ Nor had they told the former employees of their interest in the case, or of the purpose for the interviews.¹¹⁰ The fact that the lawyers were not seeking confidential or privileged information did not relieve them of their obligation to give these warnings.¹¹¹ As a result of their failures, the interviews of the former employees were deemed to be improper. The court disqualified the defense lawyers who conducted the interviews and additionally awarded the plaintiffs monetary sanctions.

Muriel Siebert and Postorivo provide lawyers with substantial guidance when attempting ex parte communications with an organization's former employees. Some other precautionary steps are also advisable. First, lawyers should identify themselves, the parties they represent, and the matter at hand. Second, they should ask former...