Introduction:
Most cases are won or lost on testimony of witnesses and when locked in litigation with a business entity, such as a corporation or limited liability company, the entity speaks through its agents. Those agents are officers, directors, managers and employees of the entities. Thus, to get information from the entity, one asks the questions of its employees and officers.
The Rules of Professional Conduct in California are strict in limiting the ability of a lawyer to communicate in any manner with an opposing party represented by counsel. The rationale is that a party represented by counsel should have that counsel present to guide and possibly object to questions being asked and that counsel can instruct the client/agent not to even communicate with the opposing counsel at all outside of deposition or testimony in court. The Bar can impose significant sanctions on any attorney ignoring these restrictions.
But what happens if a witness is no longer working for an opposing party and thus is not actually being represented by that lawyer? Assume a witness quit the opposing entity two years ago and now works for a third company. Can the attorney interview the ex-employee and have that employee sign declarations or agree to testify?
That is the question answered in this article.
The Basic Law:
California Rules of Professional Conduct, Rule 2-100 Communication with a Represented Party states as follows:
(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
(B) For purposes of this rule, a “party” includes:
(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or
(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
(C) This rule shall not prohibit:
(1) Communications with a public officer, board, committee, or body; or
(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice; or
(3) Communications otherwise authorized by law.
American Bar Association (ABA) Model Rules of Professional Conduct, rule 4.2 (Model Rule 4.2) contains a similar proscription against unauthorized contacts with represented persons or entities unless counsel consents:
In representing a client, a lawyer shall not communicate about the subject matter 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.
But since the employee or agent no longer works at the entity and the lawyer is representing the entity and not the former employee, does that allow direct contact with him or her?
Contacting former employees of an opposing party is probably, but not definitely, prohibited by the California Rules of Professional Conduct, Rule 2-100 if the communication pertains to the former employee’s act or omission in connection with the subject matter in such a way in which it may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.
Discussion:
In discussing Rule 2-100’s predecessor, Rule 7-103, the court in Bobele v. Superior Court, 199 Cal.App.3d 708, 713 held that “the prohibition against ex parte contact with a ‘party represented by counsel’ does not extend to former employees of a corporation who were not and are not members of the corporation's ‘control group.’” The “control group” test states that those employees who play a substantial role in deciding and directing the employee's legal response were protected. The Bobele court further explained that "[t]hese individuals are third party witnesses who, as the respondent court correctly stated, are 'fair game' for opposing counsel. They are not sufficiently identified with the corporation to be considered ‘parties represented by counsel,’ and they are less likely than current employees to be privy to privileged communications.” Id.
But that position was undermined by a later decision. The court in Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131 broadened the "control group" test so that the protection did not apply to only officers, directors, and managing agents of an organization, but also to former employees if the subject matter of the conversation is the employee's act or failure to act in connection with the matter at issue and that act or failure to act could bind the organization, be imputed to it, or if the employee's statement could constitute an admission against the organization. The court in that case stated:
“[R]ule 2-100 permits opposing counsel to initiate ex parte contacts with unrepresented former employees, and present employees (other than officers, directors or managing agents) who are not separately represented, so long as the communication does not involve the employee's act or failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.” Id. at 140.
In an even more recent case from 2013, San Francisco Unified School District ex. rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, the court found that former employees connected to the subject matter of the lawsuit could not be contacted in accordance with Rule 2-100. The court found that there was no California decision construing whether an act or omission in connection with the subject matter may be binding or imputed to the organization for the purposes of civil liability in the contact of Rule 2-100. As such, for the purposes of that opinion, the court “assume[d] that any act or omission of a corporate defendant's employee within the scope of that employee's employment might be imputed to the corporation within the meaning of the act or omission clause of rule 2–100.” Id. at 1232.
In that case, the two former employees worked for the opposing party as bus mechanics and the subject matter of the lawsuit was whether the employer inadequately repaired and maintained its buses. The court held that if the subject matter of a communication with the former employee pertained to his acts or omissions while working as the opposing party’s bus mechanic, then that communication was prohibited by Rule 2-100. Id. The court then held that “Rule 2–100 is violated only if an attorney communicates with an employee of the opposing corporate party about acts or omissions of the employee that might be imputed to the corporation,” but noted that the trial court did not make an express finding on counsel’s actions. Id. at 1232-1233.
Conclusion:
The entire purpose of the communications with an ex-employee of an opposing party would be to find evidence useful to the case. The above cases make it clear that such efforts are prohibited. And that is true whether or not the ex-employee was in a “control group.” The current test is the subject matter of the communication, not the role of the ex-employee within the company. Or, as one attorney known to the writer quipped, “I can speak with an ex-employee as long as it has nothing to do with the reason I want to speak to him.”
But note that for non-litigation related matters, both the lawyer and the party are allowed such communications. What happens if the ex-employee begins to volunteer information to the party or its lawyer? The lawyer must immediately end the conversation and advise opposing counsel of what happened.
This does not mean that an ex-employee cannot be questioned. It simply means that the opposing counsel must be there or it must be in a formal setting of the trial court or a subpoenaed deposition.
The protection of a witness employed or once employed by an opposing party is co