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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-09
Communication with Person Represented by Counsel
Your inquiry provides the following facts. A defendant in a pending suit was a former employee of the plaintiff. Pending litigation alleges conversion, breach of fiduciary duty, unjust enrichment and fraud. The defendant in the civil suit is also charged criminally for the same activities that form the basis for the civil suit by the plaintiff corporation. Another employee of the plaintiff corporation was contacted in person by two private investigators who had been retained by defendant's attorney and were acting on the attorney's behalf. The employee who was contacted was a receptionist/secretary at the plaintiff corporation. Your inquiry further states that the employee ""conferred at length"" with plaintiff's counsel concerning the mater and testified in Court as a witness in the civil case. You inquire as to whether or not defendant's counsel committed an ethical violation when his tow investigators questioned the employee without obtaining plaintiff's counsel's permission to do so.
Rule 4.2 of the Maryland Rules of Professional Conduct states:
""In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so.""
The comment to the Rule states in part:
""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 who statement may constitute an admission on the part of the organization.""
The Committee on Ethics has opined on similar issues in Ethics Dockets 86-13, 83-4, and 83-81. In those earlier Opinions, the Committee interpreted DR7-104 (a)(1) to stand for the proposition that communications with an employee of a corporation would be improper if the individual shared a requisite amount of identity with the corporate entity.
It is the opinion of the Committee on the facts presented that the employee did not have a managerial responsibility on behalf of the corporation, nor did she share the requisite identity with the corporation that would prevent the defendant's attorney communicating directly with her.
References: Ethics Dockets 1983-4, 1983-81 and 1986-13
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