Everyone knows that a lawyer is not permitted to speak to a person he knows to be represented by counsel during the course of a litigation. This well known rule comes from New York Rule of Professional Conduct 4.2: “[i]n representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter.”
When the party is a person, the rule is easy to interpret and to apply – no communication with that person. But when the opposing party is a corporation, the analysis has the potential for differences of opinion in ways that could prove critical in your litigation. Whether an employee or former employees of a corporate party qualify as parties under the Rule are the source of nearly every disputes under Rule 4.2.
After years of making lawyers guess who was and was not covered, the New York Court of Appeals finally addressed the issue. In Niesig v. Team I, 76 N.Y.2d 363 (1990) the Court finally articulated a test for determining whether an employee of a corporate litigation is a party, finding that corporate employees whose acts or omissions in the matter under inquiry are binding on the corporate defendant are off limits and not to be contacted by adverse counsel.
This definition resolved some issues, but was not precise enough to determine others. This was partially by design because the mandate against contact is not a statute, but only a disciplinary rule that the Court is not obligated to follow to the letter. The Court thereby maintains its flexibility to craft a solution in the interests of justice, though that standard leaves attorneys with little guidance.
It took another ten years for the Court of Appeals to clarify in Siebert v. Intuit, Inc., 8 N.Y.3d 506 (2007) that the test in Niesig only permitted ex parte communication with former, not current, employees.
Where an ex parte communication is permitted, the attorney must make their identity and interest known to interviewees and comport themselves ethically, meaning they cannot feign disinterest or pretend to be someone other than who they are.
In practice, this remains a fertile ground for uncertainty. None of the tests are definitive enough to allow an attorney to proceed with absolute confidence. Whether or not a person is presently employed is not always as black and white as the Court might have hoped. This is especially so in the construction industry, where employment is often seasonal and sporadic based on need. Whether or not a former employee’s acts are to be considered binding on the employer is equally murky.
Fortunately, attorneys far more often than not err on the side of caution in this area, and ask opposing counsel for permission to speak with a former employee or ask for their appearance at a deposition where the checks and balances of the adversarial system are in place. The penalty for communication ex parte with a party who an attorney should not have communicated with can be as severe as disqualification, so that infractions tend to occur with infrequency. The bottom line is caution must be exercised in communicating ex parte with former employees.