Ethics Opinon 1984-5

I
QUESTION PRESENTED

Attorney A represents a party in litigation or controversy against a corporation or other organization. Attorney A actually knows that the organization is represented by Attorney B in the particular controversy. Attorney A wishes to contact and interview an employee of the organization regarding the matter.

May Attorney A interview an employee of an organization without first obtaining the consent of the organization's counsel?

II
SUMMARY

It would not be proper for an attorney to contact an employee of an organization regarding matters within the scope of the employee's employment without first obtaining the consent of the organization's counsel. The attorney who communicates with the employee must affirmatively show that the particular employee was not being contacted concerning matters within the scope of his or her employment. However, if the employee is represented by his or her own counsel in relation to the matter, consent of that counsel to the communication shall be sufficient.

III
ANALYSIS

ABA Code of Professional Responsibility Disciplinary Rule 7-104(A) provides that:

"During the course of his representation of a client, a lawyer shall not:

"(1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

California Rule of Professional Conduct 7-103 provides that:

"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy without the express consent of such counsel. This Rule shall not apply to communications with a public officer, board, committee or body."

When an organization is a party, a decision must be made as to which employees of the organization ought to be "parties" subject to the restrictions of these rules, and which employees are merely witnesses who may be freely contacted by opposing counsel.

In the past, the analysis has frequently centered on which employees are management or "control group" employees of the organization. However, concurrently with an expansion of the attorney-client privilege concept in the corporate context, there has been an expansion of the definition of the group of people to whom the ethical restrictions apply.

The Los Angeles County Bar Association has recently changed its position in this area. Its earlier opinion (Los Angeles County Bar Formal Opinion 369) used three factors to determine whether an individual employee should be classed as a party and subject to the restrictions of these rules or as a non-party witness who could be contacted freely by an adverse party's counsel. First was the extent of the individual's authority to control corporate decisions regarding this particular litigation; second, whether an admission by the employee would be binding on the corporation under applicable rules of evidence; third, whether the individual would have access to confidential information relevant to the subject of the interview.

In 1983, the Los Angeles County Bar Association modified and expanded its position. In Los Angeles County Bar Formal Opinion 410, it was determined that it is not proper for an attorney to contact any employee of an adverse corporate party knowing that the information sought from the employee relates to a matter in controversy. New York County Lawyers' Association Opinion 528 is in agreement.

Many other Bar associations have opined, however, that non-management and non-administrative employees are not parties, but witnesses who may be contacted without the corporate employer's consent. A variety of tests have been used to determine which individuals fall into which class. ABA Informal Opinion 1410 (1978) asks whether, because of the individual's authority as a corporate officer or employee, the individual has the power to commit the corporation in the particular situation. The comment to ABA Model Code Disciplinary Rule 4.2, "Communication with Person Represented by Counsel" states that the prohibition of the rule applies to communications 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 that organization." Several opinions have also inquired as to whether the individual employee is the person for whose acts or omissions the corporation is being sued. (State Bar of Texas Opinion 342(3/68); Louisiana State Bar Association Opinion 329(12/68). See also Maryland Bar Association Opinion 83-4(982); New York City Bar Association Opinion 80-46; Tennessee Bar Association Opinion 83-F-46.) It is commonly required that the attorney who contacts an employee who is classed as a witness and not as a party identify himself as an attorney for a party opposing the corporation, and inform the employee of the controversy and the reason for the inquiry.

The Supreme Court, in Upjohn v. United States (1981) 449 U.S. 383, held that, for purposes of the attorney/client privilege (as distinguished from the ethical restriction), communications to corporate attorneys concerning matters within the scope of an employee's corporate duties are protected by the privilege, whether or not the communicating employee may be considered managerial or within the "control group" of the corporation. The Court rejected the control group test which required a determination of whether the employee would take a substantial part in deciding on the action the corporation may take upon the advice of the attorney. A control group test discourages the communication of relevant information by employees to counsel, and vice versa. The facts of the Upjohn opinion involved discussions between employees and counsel regarding matters within the scope of the employees' corporate duties.

The California Supreme Court did not venture as far as the United States Supreme Court when defining the scope of the attorney/client privilege under state law. In D.J. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, eleven factors were listed which should be considered in determining whether a given employee/attorney communication is subject to the attorney/client privilege of the corporation. Included in the eleven are whether the employee is the "natural" person to speak for the corporation on this issue, and whether the employee's connection with the issue grows out of the employment.

The Los Angeles County Bar Association in its Opinion 410 favored the predictability of a rule protecting all employees. That Opinion states four reasons. First, the corporate employee may be prejudiced directly or indirectly by the ex parte contact. Second, the corporation has an interest in seeing that information learned by an employee in the course of his employment is not disclosed. Third, a corporate employee might be induced by opposing counsel into making admissions binding upon the corporation. Fourth, opposing counsel will always have difficulty in determining whether an individual is a control group member or not and may inadvertently make improper contact. ABA Code of Professional Responsibility, Ethical Consideration 4-1, advises that a lawyer should be fully informed of all the facts of a matter in order for his client to obtain the full advantage of the legal system. If the lawyer (and the employees of the organization) cannot be sure that a conversation will be privileged, then they may be hesitant to have the conversation. An employee of an organization is not likely to know whether or not he is making a statement in the course or scope of his employment which will bind the corporation under California Evidence Code section 1222. Nor is the employee likely to know whether a given communication is privileged, or whether he is a control group member. Such an employee may voluntarily disclose information which would be harmful to the employee, or his employer, or both. Therefore, an attorney who communicates with an employee must be careful about the questions asked and bear the burden of establishing that the employee was fully aware of the reason for the discussion.

The Los Angeles County Bar Association found that the unpredictability of the control group test placed opposing counsel in a very difficult situation. Should a control group test be adopted, an inadvertent contact with a control group member would cause the attorney to have inadvertently violated rule 7-103, and be subject to discipline.

Therefore, to provide a predictable rule to counsel, it is this Committee's opinion that no employee of an organization should be contacted by opposing counsel on matters within the scope of the employee's employment without first consulting with and obtaining the consent of the organization's counsel. Nothing in this Opinion should be construed as allowing any organization or its counsel to conceal evidence. Attention is called to the prohibition on counsel's suppression of evidence or causing a person to secrete himself or leave the jurisdiction for purposes of making him unavailable as a witness. See ABA Model Code DR 7-109(A)(B); California Rule of Professional Conduct 7-107(A)(B). This Opinion is not intended to address in any way any issues raised in the criminal representation area nor to restrict corporate employees from revealing or reporting violations of law to law enforcement.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.