ETHICS DOCKET NO. 1988-34

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-34

Communication with Non-Lawyer Employees of Adverse Party

According to your letter, you represent a large retailer which is a party to a matter in litigation. Opposing counsel have attempted to communicate ex parte with various current employees, including cashiers, store managers and supervisory personnel who control several stores. You have requested an opinion as to the propriety of such ex parte communications, requesting a delineation as to how far up the corporate ladder opposing counsel may go in directly communicating with current employees of a corporation represented by counsel.

Although this Committee is in a position to give you guidance as to the extent to which opposing counsel may communicate directly with employees of a corporate party to litigation, we are not in a position to give you a specific delineation in this regard. Rule 4.2 of the Maryland Rules of Professional Conduct prohibits a lawyer from communicating directly with a party known to be represented by counsel, unless counsel has consented thereto. The Comment to Rule 4.2 states, in pertinent part, as follows:

""In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation 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 the organization.""

Accordingly, opposing counsel cannot contact, without your consent, persons with managerial responsibility. With respect to lower level employees, opposing counsel cannot contact such persons, without your consent, if (i) such persons' acts or omissions in connection with the litigation matter may be imputed to the organization, or (ii) such persons' statements may constitute an admission on the part of the organization for purposes of civil or criminal liability. Whether or not either of these latter two situations applies is a mixed question of law and fact which you must resolve yourself; this Committee does not opine on questions of law and does not make findings of fact. We refer you to an earlier Opinion of this Committee, Ethics Docket 78-27, wherein this Committee rendered a similar Opinion in response to an inquiry much like yours. We pointed out in that Opinion, which interpreted DR7-104 (which is virtually identical to the current Rule 4.2), that the circumstances of the particular litigation may cause different results as to whether a given employee falls within or outside of the scope of the Rule.