III. Ethical Restrictions Affecting Lawyers' Ability to Investigate Clients' Claims or Contentions

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

III. Ethical Restrictions Affecting Lawyers' Ability to Investigate Clients' Claims or Contentions

As discussed above, the duty to avoid making frivolous claims or contentions means that lawyers must adequately investigate clients' claims and contentions. The need to investigate often creates a need to communicate with third parties, which can raise a host of ethics issues. In a simple example, a lawyer for a plaintiff may first think to confirm the client's factual assertions by interviewing the potential defendant's current or former employees. Unfortunately for the diligent plaintiff's lawyer, her ability to conduct those interviews may be extremely limited as a result of the restrictions in Model Rule 4.2 and state counterparts.

Model Rule 4.2 provides that a lawyer representing a client "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."146 Rule 4.2 clearly applies to communications by a lawyer prior to filing a lawsuit if the target person is represented by counsel in the matter encompassed by the contemplated lawsuit.147 And, of course, a lawyer seeking to make an appropriate pre-filing investigation cannot simply employ the services of another—such as a private investigator or independent insurance claims adjuster—to engage in communications otherwise prohibited by Rule 4.2.148

A surprisingly common situation in which an attorney's conduct runs afoul of Rule 4.2 occurs when the attorney is implicated in encouraging the client to obtain an affidavit from someone who is represented by counsel.149In re Pyle150 is an interesting case in point. There, Thomas Pyle represented Sallie Moline in a trip-and-fall case against Ricci Gutzman. Moline, who alleged that she hurt her knee tripping over a dog cable in Gutzman's driveway, was romantically involved with Gutzman. Prior to suing on Moline's behalf, and before Gutzman was represented by counsel, Pyle prepared an affidavit for Gutzman's signature which, among other things, contained a statement by Gutzman admitting liability and taking full responsibility for Moline's injuries. Pyle gave the affidavit to Moline to deliver to Gutzman.151 After suit was filed, Gutzman's insurer hired John Conderman to defend him. Conderman filed an answer denying liability. Pyle went to the well again, creating another affidavit for Moline to take to Gutzman. Pyle provided that affidavit to Moline along with a cover letter stating: "As a party to the case, you have the right to communicate with Mr. Gutzman. Therefore, please talk with him and see if he will sign the enclosed affidavit."152

Pyle was ultimately charged with violating Rule 4.2. In rejecting Pyle's argument that Moline could not be considered his agent when he was in fact her agent, the court discussed two similar cases where lawyers had used their clients to deliver documents to a represented party contemplating that a signature would be obtained without that party's lawyer's knowledge,153 and concluded that Pyle violated Rule 4.2 "by encouraging his client to do that which he could not."154 The Kansas Supreme Court publicly censured Pyle for his misconduct.

Bratcher v. Kentucky Bar Ass'n155 provides a relatively recent example of how a lawyer can unthinkingly run afoul of the ethics rules as a result of communications by an agent. A former employee of R.C. Components, Inc., Dennis Babbs, hired Pamela Bratcher to represent him in a wrongful termination lawsuit. Bratcher, in turn, hired a company in the business of determining what listed references will say about former employees, Document Reference Check (DRC), to contact the owner of R.C. Components to see what he would say about Babbs.156 A DRC employee telephoned the owner, said she was an employer considering hiring Babbs, and transcribed the conversation for Bratcher. Bratcher, sensing no wrongdoing, produced the transcript to R.C. Components in discovery.157 R.C. Components successfully moved to suppress the transcript and to disqualify Bratcher. After losing the disqualification battle in the underlying litigation, Bratcher admitted in her disciplinary case that her conduct constituted an ethical violation and asked that the discipline against her be limited to a public reprimand.158 The Kentucky Supreme Court accepted her position and publicly reprimanded her for violating Rule 4.2(a).

Rule 4.2 can pose thorny problems for investigating lawyers where potential witnesses are employed by a represented organization. Because organizations can only act through their constituents, lawyers must be able to judge who within a business organization is considered to be represented by the lawyer representing that organization. Different jurisdictions take different approaches to this issue. Comment 7 to Model Rule 4.2 lays out the preferred approach:

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.159

Jurisdictions adopting this approach often refer to the individuals within this sphere as the "control group" or the organization's "alter egos." These people are presumptively treated as being represented by counsel for the organization. Under the ABA approach, however, an organization's in-house lawyers are not off-limits under Rule 4.2, and consent from outside counsel for the organization is not required to communicate with in-house lawyers as long as they are not part of the constituent group of the organization described in the comment to Model Rule 4.2 or are not separately represented.160 This approach to ex parte communications with in-house lawyers makes sense, and going farther to even permit ex parte contact with in-house counsel regardless of whether they are acting solely as a lawyer for the organization would also make sense, given that "[t]he purpose of Rule 4.2 is to prevent a skilled advocate from taking advantage of a non-lawyer."161

Some jurisdictions have deviated from the ABA approach and adopted a "managing-speaking agent test."162 Under this test, lawyers are prohibited from communicating ex parte with organizational employees who possess "speaking authority" for the organization—those "who 'have managing authority sufficient to give them the right to speak for, and bind the corporation.'"163

Microsoft Corp. v. Alcatel Business Systems164 illustrates how lawyers can run afoul of the ethical restriction on ex parte communications with protected employees of a represented organization. In that patent case, the lawyers for Microsoft were not disqualified for their actions but were monetarily sanctioned. Basically, they purchased a piece of equipment that contained components that allegedly infringed the patents at issue and arranged for the equipment to be installed by an employee of the represented defendant.165 The employee, Po Ching Lin, consistent with his job duties, provided "training on the administration, use and configuration" of the equipment to the Microsoft lawyers.166 The Microsoft lawyers questioned Lin about those topics. The court determined that Microsoft's lawyers violated Rule 4.2 based on Lin's "position and level of responsibility with respect to the [equipment] and because he was directed (as an employee of a represented party) to engage in conduct directly relevant to the subject matter of this litigation by [Microsoft's lawyers]."167

In addition to needing to be aware of differences with regard to the language within the comments adopted in relevant jurisdictions, application of Rule 4.2 itself to particular factual situations can be a delicate endeavor and one for which predicting the ultimate outcome is no easy task. The determination by the Third Circuit that an attorney's communications with an administrative assistant to managerial agents of a represented organization did not violate Pennsylvania's Rule 4.2 readily demonstrates how easily reasonable minds can differ on the scope of Rule 4.2's application.168

In EEOC v. Hora, Inc.,169 the district court disqualified Jana Barnett, the intervening plaintiff's counsel, because Barnett communicated with Deborah Richardson, an administrative assistant to the manager and part-owner of the Days Inn where the plaintiff had worked. Apparently motivated by Barnett's communications, Richardson gathered a variety of information that supported the plaintiff's sexual harassment claims.170 Once defense counsel learned of these communications, they moved to disqualify Barnett. The district court concluded that, given the small number of employees working in the hotel and Richardson's position of intimate business trust as a result of being the only assistant to both the manager and the hotel's part-owner, Richardson could be treated as having managerial responsibilities for purposes of Rule 4.2.171 The Third Circuit reversed the district court's disqualification order based on the lack of evidence to support a conclusion that Richardson came within the scope of Rule 4.2. There was no evidence that Richardson had regularly consulted with defense counsel in the matter, nor was there evidence that her acts could provide a basis for imputing liability to Days Inn.172

Jurisdictions also take differing approaches to ex parte communications with former officers, agents, or employees of a represented organization, but mostly only as to the question of what precautionary measures a lawyer must take to protect against causing a former officer or employee from disclosing confidential or privileged information. Courts generally...

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