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Former Employees are Fair Game in Litigation
Commercial litigators are very familiar with the age-old client question: “Can the opposing party contact my former employee directly?” While there are several strategy considerations at play, the short answer in most jurisdictions is yes.
Former employees are tempting sources of information in litigation since they are occasionally disgruntled and eager to divulge information. That said, even former employees with amicable endings to their time at a company can be helpful for litigation because procedural safeguards requiring notification to the former employer of the intent to make contact or affording them the opportunity to be present for the communication do not apply. Because the communications with former employees are, at least theoretically, without notice to the former employer, they can provide an avenue for discovery without (or with minimal) risk. Even if the former employee is helpful to their former employer—there is no record made of the communication and usually no follow up. If, on the other hand, the former employee has information that aids the adversary, the former employee’s testimony can be memorialized in an affidavit and sprung on the former employer at a most inopportune (or, alternatively opportune) time—such as in support of a dispositive motion.
Beginning in the early 2000s, the courts have made an attempt to define the boundaries that determine how and when lawyers may communicate with former employees outside the presence of the employer’s counsel. Employers who challenged such contact would maintain that such ex parte contact violated ethical rules, claiming that the “no-contact” rule applies to both current and former employees (See, e.g., Clark v. Beverly Health & Rehab. Servs., 440 Mass. 270, 279, 797 N.E.2d 905, 912 (2003); Patriarca v. Ctr. for Living & Working, 438 Mass. 132, 140, 778 N.E.2d 877, 883 (2002)).
However, employers and lawyers alike should be aware that the courts have made it clear that the rules do not prohibit an adverse attorney from contacting former employees (or even some current employees for that matter) without notice to the company. Courts look to the intent of Rule 4.2 of the Model Rules of Professional Conduct, which encompasses “communication with person[s] represented by counsel” to reach this conclusion. Under that rule, if a lawyer knows that the former employee is represented, contact is limited. Essentially, the purpose of this rule is “to protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney.” See Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard Coll., 436 Mass. 347, 368, 764 N.E.2d 825, 840 (2002). Absent such representation, the limitation generally does not apply.
The interpretation of Rule 4.2, which is commonly referred to as the “no-contact” or “anti-contact” rule, may differ depending on the jurisdiction, although only a minority apply 4.2 to ex parte communications with former employees (See, e.g., Colborn v. Hardee’s Food Systems, Inc., 2010 WL 4338353 (N.D. Miss. Oct. 27, 2010) (Although ex parte communication with a former employee is generally allowed under Mississippi’s Professional Rules, where the case was a slip and fall at a restaurant and the former employee was responsible for mopping the women’s bathroom where the injury occurred, the court found that the former employee was a person “whose acts or omissions” could be imputed to the restaurant and did not permit ex parte contact); Michaels v. Woodland, 988 F. Supp. 468 (D.N.J. 1997) (applying New Jersey law, the court found that employees who were part of the “control group” for litigation purposes could not be contacted ex parte); Smith v. Kansas City Southern Ry. Co., 87 S.W.3d 266 (Mo. Ct. App. W.D. 2002), as modified (Oct. 1, 2002) (Acknowledging that managerial employees may have had access to confidential organizational information or privileged communications between the organization and its attorneys, and fall, therefore, within the scope of the Rule)). For the purpose of this article, the focus will be on Massachusetts, New Hampshire, and Rhode Island, three states that have generally adopted the Model Rules approach to 4.2 and have allowed ex-parte contact with former employees.
Rule 4.2 of the Massachusetts Rules of Professional Conduct is a fairly standard “no contact” limitation on a lawyer’s communications:
In 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 authorized by law to do so.
A plain reading of this Rule reveals no prohibition from contacting former employees. As written, the Rule only prohibits a lawyer from making ex parte contact with a current or former employee whom counsel knows to be represented. Indeed, many jurisdictions, including Massachusetts, limit the reach of the no-contact rule to ex parte contact with three categories of current employees whose interests are closely aligned with the organization in the dispute, those agents or employees”
- “who exercise managerial responsibility in the matter”,
- “who are alleged to have committed the wrongful acts at issue in the litigation”, or
- “who have authority on behalf of the organization to make decisions about the course of the litigation.” See Comment 4, Rule 4.2.
Consequently, low-level current employees of a company can be contacted by adverse counsel without notice, unless they are known to be represented by their own counsel or if their conduct is at issue in the litigation.
The judicial rationale behind not including former employees within the scope of the no-contact rule is generally based on a “commonsense” reading of the rule. Whereas former employees were at one time—but no longer are—agents or employees of the company, it would be illogical to extend the protections provided under the rule to former employees
The no-contact rule serves to protect an organization’s attorney-client relationship by prohibiting ex parte communication with employees who are so closely tied to the organization or the events at issue that it would be unfair to interview them without the presence of the organization’s counsel. This is not true in the case of most lower-level former employees.
While the no-contact rule does not prohibit a lawyer from communicating with former employees of a represented company, there are other limits and standards to which counsel must adhere. For example, the Rules of Professional Conduct in most jurisdictions provide that counsel conducting the ex parte interview must be truthful to the third party (see Rule 4.1) and must refrain from using unfair or illegal tactics to obtain evidence (see Rule 4.4). There are certainly practical aspects to permitting lawyers to communicate with former employees. At least one court in Massachusetts has observed the following:
Courts have long recognized that informal interviews are an exceptionally efficient means for the meaningful gathering of facts. They are generally more conducive to full disclosure and far less costly than the more structured processes of formal discovery … 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.
See Clark, 440 Mass. at 278.
This court also highlighted the essential policy decision behind the non-contact rule:
It is important to keep in my mind that the no contact rule is designed to protect the attorney-client relationship, not the underlying facts. See id. at 276.
Rhode Island’s body of case law on Rule 4.2 is not as developed as Massachusetts’, but its Supreme Court Ethics Advisory Panel offered guidance on former employees and Rule 4.2:
Rule 4.2 permits the inquiring attorney, who represents a plaintiff in a lawsuit against a corporation, to communicate ex parte with a former employee of the defendant corporation without the consent of opposing counsel.
See R.I. Supreme Court Ethics Advisory Panel, Op. No. 2012-02 (Feb. 9, 2012) (responding to a question presented by a member of the bar).
In supporting their opinion, the Advisory Panel looked to Comment 7 of Rule 4.2 of Rhode Island Rules of Professional Conduct, which explicitly indicates such consent “is not required for communication with a former constituent.” Further, the Panel cited to its own 1991 advisory opinion, which came to the consistent conclusion under a prior version of the Rules. An ABA Formal Opinion also from 1991 provided additional support. Indeed, the American Bar Association Standing Committee on Ethics and Professional Responsibility also held that the Model Rule did not prohibit communications with former employees.
Notably, the Ethics Advisory Panel appropriated Massachusetts’ interpretation of Rule 4.2 by relying on the Clark decision discussed above.
Similar to Rhode Island, New Hampshire’s Supreme Court has not decided whether New Hampshire Rule of Professional Conduct 4.2, which is almost identical to the rule in Rhode Island and Massachusetts, only applies to current employees. However, lower courts and the federal court have shed some light on the likelihood that New Hampshire’s highest court would follow the majority rule. As the Rockingham County Superior Court held in Aaron Wallack and Steve Wallack v. Southern District YMCA/Camp Lincoln, Inc. and Giant Bicycles, Inc., No. 218-2013-CV-823 (N.H. Super. June 12, 2014), it “appears clear that in New Hampshire law, Rule 4.2 only applies to current employees.”
Further, relying on In re Tyco Int’l. Ltd. Sec. Litig., the court held that “[t]here is no basis to conclude that New Hampshire would extend Rule 4.2 to former employees, including senior ones since neither the Rule nor its comment purports to deal with former employees of a corporate party.” Aaron Wallack and Steve Wallack v. Southern District YMCA/Camp Lincoln, Inc. and Giant Bicycles, Inc., No. 218-2013-CV-823 (N.H. Super. June 12, 2014) (quoting No.00-MD-1335-B, 2001 WL 34075721 at *3 (D.N.H. Jan. 30, 2001) (internal quotations and citations omitted)). The court also noted that New Hampshire’s Business and Commercial Dispute Docket, then at the Merrimack County Superior Court, reached the same conclusion in XTL-NH, Inc. v. N.H. Liquor Comm’n & Exel, Inc., No. 2013-CV-119, 2013 N.H. Super. LEXIS 24 (N.H. Super. Dec. 31, 2013). Although the New Hampshire Supreme Court has not spoken on the issue of former employees, these lower courts and the federal court identify the lack of impact on former employees, the Ethics Committee comment on Rule 4.2 illustrates that the analysis for current employees is not so clear cut. See N.H. Rules of Professional Conduct 4.2, Ethics Committee Comment.
What does this all mean for employers? Former employees are fair game in litigation and can prove to be a vital source of information for opposing counsel. While the boundaries will certainly continue to be refined over time, employers must keep such considerations in mind when parting ways with an employee. There are steps that employers can take to protect proprietary and confidential information of the company, including comprehensive employment agreements, confidentiality employee handbook policies, and confidentiality/nondisclosure agreements that carefully set forth what information a former employee can reveal and, if need be, protective orders to enforce those agreements. However, the prevailing trend of jurisprudence on this subject makes clear that employers must be mindful of information in the possession of former employees. Further, litigators can work with employers to identify former employees that could fall within the scope of the protection of 4.2, to put them on notice if they receive direct contact from opposing counsel. While the employee may not still work there, an employer may not want them to “trade teams” even if that’s fair game.