Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Even Pre-Litigation Is Not A Contact Sport

You have a client who was injured in a single car automobile accident on the freeway. The client has retained you to pursue an action against the government highway agency for a construction design defect. You have conducted some initial investigation and filed a claim with the agency, which was rejected. Owing to your experience in this area of practice, you have contacts in the highway agency and have information suggesting that the head engineer in the local office was aware of the possible design defect you will claim caused your client’s car to crash causing her injuries. You would like to interview this head engineer prior to filing your lawsuit.

You know that Rule 2-100 of the Rules of Professional Conduct (ABA counterpart Rule 4.2) provides that, “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.”

Although you have not had any direct contact with agency’s counsel, you are aware that an attorney has been assigned to the matter. However, you think, first, is the supervisor a “party,” and, second, is the supervisor “represented by another lawyer?”

You have not yet filed a lawsuit, so the supervisor cannot be a “party,” right? Wrong. First, the ABA rule, 4.2, uses the term “person” and the State Bar Rules Commission is on the verge of recommending that Rule 2-100 be amended to conform with ABA 4.2 by changing “party” to “person.”. But more importantly, the discussion notes to Rule 2-100 advise: “As used in paragraph (A), ‘the subject of the representation,’ ‘matter,’ and ‘party’ are not limited to a litigation context.” Indeed, the courts which have construed this aspect of Rule 2-100 have held that the terms “party,” “matter,” and “subject to representation” are not strictly limited to the context of litigation. The key is whether an “adversarial relationship” has arisen.” It seems fairly clear that there is an “adversarial relationship” between your client and the highway agency, even at this pre-litigation stage.

But, is the head engineer “represented” by department counsel or is the head engineer merely a potential witness?  For purposes of the rule, “party” means “(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.” A “managing agent” is someone who exercises “substantial discretionary authority over decisions that determine organizational policy.” (Snider v. Superior Court (2003) 113 Cal.App.4th 1187.)

This is a tough call to make in this instance because the head engineer heads the engineering division of the local office, hires and manages the entire staff, sets some policy, and, significantly, is required to file a Statement of Economic Interests (Form 700) with the Fair Political Practices Commission, suggesting that the head engineer’s agency believes the supervisor makes discretionary and possibly policy decisions. Additionally, even if not in the so-called “control group,” under the facts here, the subject of the conversation you would have with the head engineer would relate to “the employee’s act or failure to act in connection with the matter at issue,” and thus, may come within the “covered employee” aspect of the rule. (Snider, supra, 113 Cal.App.4th at p. 1203.) So, you determine it is best not to risk exploiting that aspect of the Rule.

You are just about to give up on the idea of approaching the head engineer when you read subdivision (C) of the Rule 2-100, which provides: “This rule shall not prohibit: (1) Communications with a public officer, board, committee, or body….” You do a bit of research and determine that this exception to the no contact rule is justified on the basis of the 1st Amendment constitutional right to petition the government for redress---to communicate with public officials. You are convinced that the head engineer is a “public officer” by reference to the Political Reform Act, among other statutes. So, this exception seems to permit you to proceed to contact the head engineer, right?

Not so fast. Clearly, your intended contact with the head engineer is for purposes of your upcoming litigation and not to “petition the government for redress” as protected by the 1st Amendment. But does that matter? The rule doesn’t explicitly say so. However, at least one federal district court judge sitting in Sacramento has held that in these circumstances, the “communications with a public officer” exception does not apply. There the attorney contacted U.S. Forest Service employees in connection with a suit he had brought against the United States. The judge ruled that the attorney’s purpose was not seeking governmental redress, but was for purposes of advancing the lawsuit and that “to suggest the rule permits unfettered access to the employees in question here, regardless of the purpose, carries the exception too far.” The court held that absent exercise of the 1st Amendment right, the exception in (C)(1) does not apply. (United States v. Sierra Pac. Industries (E.D.Cal. 2010) 759 F.Supp.2d 1206, 1213-14.)

You wisely decide it is not worth risking your reputation, your ticket or prejudicing your client’s case by pushing this exception. So, you decide you ought not contact the head engineer and wait for the opportunity to depose her once litigation has been initiated.

-- Gary Schons

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**