atLaw
Karen A. Whitley
617 226-3402
Shareholder
Areas of Concentration
Business Litigation
Employment
Office
The term “informal discovery” has traditionally meant the behind-the-scenes investigation that lawyers undertake to obtain information about their opponent’s case. This can include public records searches, internet queries, and even the use of private detectives. Recently, both the Supreme Judicial Court (“SJC”) and the United States District Court in Massachusetts have discussed the propriety and scope of another form of informal discovery: ex parte discussions (those which occur outside the presence of another attorney) between plaintiff’s counsel and employees of the opponent. In June 2002, the Massachusetts Bar Association Ethics Committee (“Ethics Committee”) issued an opinion on the topic as well. Employers have good reason to be concerned about the current, much-narrowed interpretation of the relevant ethical rule, Massachusetts Rule of Professional Conduct 4.2. Rule 4.2 prohibits an attorney from talking about the subject matter of a lawsuit with a person represented by counsel, unless counsel for the witness consents or unless the law permits the conversation to take place. In the employment law context, a former employee has a significant interest in talking, off the record, to former co-workers and managers who have knowledge of the former employee’s claims against the company.
Until recently, employers and their attorneys operated under the belief that Rule 4.2 prohibited a plaintiff’s attorney from contacting most, if not all, of the company’s employees without prior authorization from the company’s lawyer. The Rule ensured that an employer would not learn on the eve of trial that one of its own employees was the star witness for the plaintiff, having made ill-advised or damaging comments about the company to the plaintiff’s counsel without the company’s lawyer present. Recent state and federal decisions, however, have expanded and clarified the scope of permissible ex parte conversations.
In the case of Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, the SJC significantly narrowed the group of employees who are off-limits to a plaintiff’s counsel. The Messing case dealt only with ex parte contact with current employees. Under Messing, the only employees who cannot be contacted are those who: 1) allegedly committed the wrongful acts; 2) exercise management authority in the matter; or 3) are responsible, on behalf of the corporation, for making decisions about the course of the litigation, such as when to file suit or when to settle the case. The Court acknowledged that its decision was a “retrenchment from the broad prohibition on employee contact” and said that the Rule had previously been “overly protective” of corporate entities. On June 5, 2002, the SJC amended the commentary to Rule 4.2 to make it consistent with the Messing decision.
Recognizing that the Messing decision did not discuss contacts with former employees, the Ethics Committee issued an opinion in June 2002, and determined that the SJC would conclude that communications with former employees also permitted. The Ethics Committee warned, however, that not all former employees may be contacted. For example, ex parte contact is forbidden if a former employee is represented by separate counsel, if the former employee is represented by the company’s lawyer, or if the former employee was “so exposed to confidential information that contact with the employee should only be made through corporate counsel.”
It is troubling, for reasons involving both litigation strategy and business disruption, that many employees, both current and former, may now be contacted and interviewed without counsel present and without prior court approval. In reality, however, the effect of these recent rulings might not be as far-reaching as they initially appear. First, the uncertainty caused by inconsistent rulings in federal and state court and the lack of a definitive ruling from the SJC on the applicability of Rule 4.2 to former employees may discourage a plaintiff’s informal discovery efforts. Second, it will not always be clear whether a prospective witness falls within one of the categories of employees, either current or former, who may not be contacted, and a plaintiff’s counsel may not wish to risk violating the ethical rules in those close cases.
Third, even where interviews are clearly permitted, attorneys proceed at their peril if they fail to conduct formal discovery and if the informal statements obtained during the ex parte conversation are inadmissible at trial for any reason.
Finally, an employer may counteract a plaintiff’s informal discovery by implementing several measures, including:
• conducting its own internal investigation to identify employees with knowledge of relevant facts who might be contacted by a plaintiff’s counsel in order to establish the basis of their knowledge and the extent of damaging information that could be obtained;
• advising employees that they are free to decline an ex parte interview (though the employer cannot prohibit the interview); and
• meeting with employees who have been interviewed for debriefing purposes.
The prohibition against ex parte communications has been one of the first-taught and inviolate rules of ethics. The recent state and federal court decisions, further bolstered by the Ethics Committee opinion, have chipped away at the time-honored rule to the point that there are very few employees, current or former, who are inaccessible to plaintiff’s counsel. Clearly, diligence by an employer is required to prevent being surprised at trial by information obtained informally from this expanded group of potential witnesses.
