Contacting Former Employees of a Company Involved in Litigation

No Contact Rule

 Massachusetts Rule of Professional Conduct 4.2 states that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is so authorized by law to do so.” This so-called “no-contact” rule exists to “protect the attorney-client relationship and prevent clients from making ill-advised statements without counsel of their attorney.” In the context of a business, the rule aims to balance a litigant’s need for information and an organization’s need to protect its legitimate interests. Preventing the disclosure of unfavorable facts merely because they happen to have occurred in the workplace is not a legitimate interest for purposes of applying the rule.

Current Employees

With regard to current employees of a company, the rule prohibits contact between a lawyer and persons having managerial responsibility on behalf of the organization regarding the subject of the representation, such as the conduct of litigation; persons whose act or omission in connection with that matter may be imputed to the organization for purposes of liability; and persons whose statement may constitute an admission on the part of the organization. However, with regard to former employees, the Supreme Judicial Court found that Rule 4.2 does not apply at all.

Former Employees

In that case the plaintiff’s decedent in a wrongful death case died as a result of an overdose of morphine administered by a defendant nurse employed by a health and rehabilitation center. In the course of discovery, the plaintiff’s attorney contacted another nurse formerly employed at the center who was on duty the night of the incident and, as such, was directly involved in the subject matter of the litigation. The plaintiff’s attorney identified himself to the nurse, and described the parties and general nature of the case. After ascertaining that the nurse was willing to speak with him without an attorney, the plaintiff’s lawyer had at least one substantive conversation with her concerning her memory of events. When the health center’s attorney learned of the contact, he sought and obtained a protective order in the trial court based on Rule 4.2, prohibiting the plaintiff’s counsel from contacting former employees. On interlocutory review, the SJC vacated the order stating that “Rule 4.2 protects only the attorney-client relationship, and not the underlying facts.” The court continued that an organization’s attorney-client relationship is appropriately protected when the no-contact rule is construed to prohibit ex parte communication with current employees who are so closely tied with the organization or the events at issue that it would be unfair to interview them without the presence of opposing counsel. The court also noted that informal interviews are an exceptionally efficient means for the gathering of facts, and that former employees may be a useful source of meaningful information because they may feel less directly tied to the employer’s interests and therefore more willing to discuss informally what they know.

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