When You Can Contact Others Who Are or Were Represented by Counsel: Part II
By Martin I. Kaminsky (Greenberg Traurig LLP) and Maren J. Messing (Patterson Belknap Webb & Tyler LLP)
In Part I of this article, “When You Can Contact Others Who Are or Were Represented by Counsel” (NYLER April 2015), we explained the basic guidelines as to when a lawyer is allowed to directly contact another party who is represented by counsel under Rule 4.2 of the New York Rules of Professional Conduct (NYRPC)—the No-Contact Rule. We explained how New York’s No-Contact Rule differs from ABA Model Rule 4.2 and what general limitations and restrictions a lawyer must bear in mind to assure that he or she does not invite sanctions, disciplinary action, or even disqualification by engaging in such direct contact.
As detailed in Part I, a lawyer must remember that, while N.Y. Rule 4.2(a) speaks of direct contact with “parties” rather than “persons,” the No-Contact Rule is sometimes applied to non-parties, such as potential witnesses and others with special knowledge of the transaction at issue or the facts pertinent to a pending or possible litigation, particularly in civil matters. The Rule also prohibits contact by “surrogates” such as investigators or other persons under the control of the lawyer; and it applies regardless of whether the contact is initiated by the other party and not solicited by the lawyer.
Part I pointed out some exceptions to the Rule, including for example, if the contact is “authorized by law” such as when legal process is being served. Part I also explained that, while a lawyer does not have duty to inquire whether the other person has counsel, the lawyer cannot “turn a blind eye” to that possibility or probability. Likewise, the lawyer cannot elicit confidential or privileged information that he or she or she knows the other party’s counsel would advise against his or her client disclosing.
In Part II we examine how the No-Contact Rule applies in situations that commonly arise in practice.
What Rules Apply When the Other Party Is an Entity?
N.Y. Rule 4.2(a) is clear that a lawyer may not speak about the matter at issue directly with an individual who the lawyer knows is represented by counsel concerning that matter. But, application of the Rule becomes less clear when the other party is a corporation or other entity.
As a general proposition, when a lawyer is engaged to represent an entity (whether it is a corporation, limited liability company, partnership of any type, trade association or other organization), the client is the entity alone. The Rules of Professional Conduct themselves formerly said that explicitly, but the current Rules have retreated somewhat from doing so. Cf. NYRPC 1.13 (2009); Model Rules of Prof. Conduct R. 1.13 (2011) with former Ethical Consideration 5-18. However, ethics opinions, comments, and case law interpreting the rule make that clear. Comment 34 to N.Y. Rule 1.7 explains that “[a] lawyer who represents a corporation or other organization does not, simply by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary.” Accord ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 390 (1995). Case law also holds that, as a general matter, a lawyer who represents a corporation does not represent the individuals who work for that corporation. Cohen v Acorn Intl. Ltd, 921 F Supp. 1062, 1064 (S.D.N.Y. 1995), “a law firm does not represent the shareholder of a corporation, even a close corporation, simply by virtue of its representation of the corporation itself.” See also, MacKenzie-Childs LLC v. MacKenzie-Childs, 262 F.R.D 241, 249-51 (W.D.N.Y. 2009); Doe v. Poe, 189 A.D.2d 132, 135-36 (2d Dept. 1993). See also, Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (2013–14 ed.) §1.13-7(a). For a detailed discussion, see, Martin I. Kaminsky, Legal & Ethical Issues Involved in Representing Affiliates or Principals of Clients, 37 J. Leg. Prof. 153 (2013).
The Rules recognize that an entity acts and must act through its officers, directors employees, managers, members, shareholders and other constituents. NYRPC 1.13 cmt. 1 (2009). But, not all employees of an entity or an entity’s affiliates qualify as persons who are subject to the “no-contact” rule of Rule 4.2. That is especially true for non-managerial or former employees, and persons who do not have confidential or other substantial information about the matter at issue, even though they may have other information that warrants contacting them. This is because such employees are not entwined with corporate decision making and do not bind the corporation. Comment 7 to N.Y. Rule 4.2 specifies three alternative criteria in this regard, providing that, when an entity is represented by counsel, a lawyer may not communicate with someone (1) “who supervises, direct or regularly consults with the organization’s lawyer concerning the matter;” (2) “has authority to obligate the organization with respect to the matter;” or (3) “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” NYRPC 4.2 cmt. 7 (2009). But, as explained below, it permits communication with a person who formerly had such a role in the entity.
ABA Formal Opinion 93-396 (1995) provides similar guidance as to how a lawyer can determine whether the employee he or she wishes to speak with is covered by Rule 4.2. It explains that the rule should be construed to provide for “protection of the represented person against overreaching by adverse counsel, safeguard[s] the client-lawyer relationship from interference by adverse counsel, and reduce[s] the likelihood that clients will disclose privileged or other information that might harm their interests.” ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 396 (1995). But one must look to case law for more granular and practical guidance.
Niesig v. Team I, 76 N.Y.2d 363 (1990), remains the guiding light in New York. There, a lawyer representing a personal injury plaintiff sought to interview an employee of the defendant corporation who had witnessed the accident but was not in a position to render the corporation liable or vicariously liable for it. The Court of Appeals found such contact permissible, setting for the criteria now in N.Y. Comment 1. It decreed that such contact is allowed unless the person is an employee (1) whose conduct in the matter at issue might be binding on the entity, (2) whose acts or omissions would be imputed to the entity for purposes of liability, or (3) whose role was or is to implement the advice of counsel. More recently, in Muriel Siebert & Co. v. Intuit, Inc., 8 N.Y.3d (2007), the Court of Appeals stated the rule as: “ex parte communications with non-managerial employees are permitted, but adversary counsel are prohibited from directly communicating with employees who have the power to bind the corporation in litigation, are charged with carrying out the advice of the corporation’s attorney, or are considered organizational members possessing a stake in the representation.” (For ease of reference, we refer below to such prohibited employees as “Managerial Employees.”)
The Court of Appeals’ delineation was designed to “safeguard against clients making improvident settlements, ill-advised disclosure and unwarranted concessions.” Niesig, 76 N.Y.2d at 368, 370–72. The Court has sought to strike “a balance between protecting represented parties from making imprudent disclosures, and allowing opposing counsel to unearth relevant facts through informal discovery devices *** that have the potential to streamline discovery and foster prompt resolution of claims.” Muriel Siebert, 8 N.Y.3d at 51-11.
When the person to be contacted is an employee of an affiliate of the represented entity rather than the represented entity itself, a more complex issue is presented. In that situation, the lawyer must determine not only the role of the person to be contacted but also whether his or her employer will be considered to be part of the represented entity. There does not appear to be an ethical opinion specifically addressing the affiliate situation. But, some help is provided by Association of the Bar of the City of New York Opinion 2007-3 (2007) and once again case law is of help. See explanation and discussion in the Kaminsky article supra. This is not always easy to determine; indeed, sometimes the most that can be concluded is an educated guess. Where that is the case (i.e., the connection of the affiliate is not entirely clear), the safest course will be to assume that the person is an employee of the entity being represented by counsel and to apply to that person the same guidelines that apply to actual employees of the represented entity.
Is the Rule Different for Former Employees?
In New York, former employees are not covered by the No-Contact Rule. Comment 7 to N.Y. Rule 4.2 expressly states that “[c]onsent of the organization’s lawyer is not required for communication with a former constituent.” Accord Muriel Siebert, 8 N.Y.3d at 506; ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 359 (1991).
But not all states agree, and not all courts allow contact with former employees when their employer is represented by counsel. Cf. In re Op. 668 of the Advisory Comm. on Prof. Ethics, 633 A.2d 959, 963 (N.J. 1993); In re Shell Oil Refinery, 144 F.R.D. 73, 74 (E.D. La. 1992). Further, a lawyer acting in another state (e.g., having been admitted pro hac vice there or participating in a transaction where allowed by the state’s unauthorized practice rules) may be subject to the ethical rules of that state in addition to those of New York. NYRPC Rule 8.5 (2009). As explained in Comment 1 to ABA Rule of Professional Conduct 8.5, which is the model adopted in several other states, states may “exten[d] the disciplinary authority of this jurisdiction to other lawyers who provide or offer legal services in this jurisdiction.” For some examples of states that have done so, see, Cal. Rule 1-100(D)(2); Model Rules of Prof. Conduct R. 8.5 cmt. 1 (2009).
Of course, if an employee or former employee is known to be represented by his or her own counsel or so advises the inquiring lawyer, Rule 4.2 applies regardless of his or her status within the entity. ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 396 (1995).
When Contact Is Allowed, Are There Things that Cannot Be Discussed?
Protection of privilege and confidentiality is an important purpose of the No-Contact Rule. Therefore, even when a lawyer is permitted to contact an employee of an entity, the lawyer must be careful what information to seek or accept. Rule 4.2 seeks, among other things, to assure that privileged and confidential information is not obtained by improper means, whether intentionally or unintentionally. Comment 7 to N.Y. Rule 4.2 thus cautions that, in communicating with an employee of another entity, “a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.” NYRPC Rule 4.2 cmt. 7 (2009). In having direct contact with others who are represented by counsel, “measures [should be] taken to steer clear of privilege or confidential information.” Muriel Siebert, 8 N.Y.3d at 511; Accord Restatement (Third) of the Law Governing Lawyers §102 (2000). In other words, regardless of whether such contact is permissible, the communication should not cause the person to reveal privileged or confidential information without the consent of the holder of the privilege (viz. for an employee, consent by the entity). Muriel Siebert, 8 N.Y.3d at 511; Merrill v. City of New York, 2005 WL 2923520 at *1 (S.D.N.Y. 12/30/2003); ABA Formal Opinion 91-359 (1991). This is true even if the person is a former rather than current employee and even if the person is not a Managerial Employee. Care must still be taken not to solicit or induce disclosure by the former employee of otherwise privileged or confidential information of the entity. See, Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (2013–14 ed.) §4.2-6. See also, In re Domestic Air Transport. Antitrust Litig., 141 F.R.D. 556, 561 (N.D.Ga. 1992); Camden v. State of Maryland, 910 F. Supp. 1155 (D.Md. 1996).
An inquiring lawyer must bear in mind that, when an employee, acting in that capacity, communicates about entity matters to the counsel for the entity, those communications enjoy the protections and obligations of privilege and confidentiality that the entity itself enjoys. NYRPC Rule 1.13 cmt. 2 (2009). The employee does not himself/herself become a client of the entity’s lawyer or become a party to those protections merely because he or she gives the entity’s counsel such information; and therefore is not free to decide whether to disclose such protected information. See, Doe, 595 N.Y.S.2d 503; Kubin v. Miller, 801 F.Supp. 1101, 1116 (S.D.N.Y. 1992). Rather, only the entity itself can make that determination or choose to waive a privilege or confidentiality obligation. Assn. of the Bar of the City of N.Y. Opinion 2001-1 (2001); Talvy v. Amer. Red Cross, 105 A.D. 2d 143 (1st Dept. 1994); U.S. v. Intl. Brotherhood of Teamsters, 119 F. 3d 210, 215 (2d Cir. 1997).
Caution is recommended here. Depending on the size and nature of the entity and the information involved (e.g., if it is sensitive personal information), the lawyer may, albeit unintentionally, create a separate attorney-client relationship with that person just by accepting such information or commenting on it. See, Cooke v. Laidlaw, Adams & Peck, 126 A.D.2d 453 (1st Dept. 1987); U.S. v. Daugerdas, 735 F.Supp.2d 113 (S.D.N.Y. 2010). That could complicate or even disable the lawyer’s representation of the client on whose behalf the lawyer is contacting the person.
When a lawyer seeks to contact an employee of an entity, other counsel (either for the entity, the person being contacted, an adverse party or anyone else involved) may also involve themselves. Such other counsel may permissibly advise the person being contacted (whether or not a Managerial Employee) that he or she does not have to speak with the inquiring lawyer, and may ask the person being contacted not do so. Further, in New York and in several other jurisdictions, other counsel may advise as to what the person will say, both as to the details of the discussion and any limitations which such other counsel’s own client or the person being contacted may wish to place on it. See, Rotunda & Dzienkowski, supra, §4.2-6. Although ABA Rule of Professional Conduct 3.4(f) generally precludes such advice or involvement, NYRPC 3.4 does not incorporate subpart (f) or otherwise contain such a prohibition. Moreover, even ABA Rule 3.4(f)(2) excepts from its prohibition, giving such advice when the other counsel “reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.” Model Rules of Prof. Conduct R. 3.4(f)(2) (2011).
What About Communications Directly Between Clients?
The second part of Rule 4.2, expressly authorizes a lawyer to advise his or her client to communicate directly with the client’s adversary or any other person represented by counsel provided that “the lawyer gives reasonable advance notice to the represented person’s counsel.” NYRPC Rule 4.2(b) (2009). It has even been suggested that a lawyer has a duty to advise the client of its right to have such direct communications. ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 362 (1992); Rotunda & Dzienkowski, supra, §4.2-5 at 942.
Further, counsel may also advise his or her client as to the desired content of the conversation. N.Y. Rule 4.2(b), the lawyer “may counsel the client with respect to those communications.” Indeed, most ethics opinions and the Restatement for lawyers provide that the lawyer may even script the conversation and prepare documents for use in it. ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 461 (2011); Restatement (Third) of the Law Governing Lawyers §99 cmt. k (2000); but cf., e.g., Mass. Bar Op. 11-03 (2011); Cal. Bar Op. 1993-131 (1993). Those allowing such scripting reason that “[s]uch advice enable[s] the client to communicate her points more articulately and accurately or to prevent the client from disadvantaging herself.” ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 461 at 4 (2011). But, all agree that the lawyer must stop short of advising the client to do things that might “overreach,” such as seeking confidential or privileged information or eliciting an enforceable obligation or harmful admissions without the other party’s first having had an opportunity to consult his or her own counsel. Id. at 4–5.
A lawyer may also counsel his or her client as to the meaning and significance of a communication the client receives directly from another party, whether the communication was received in response to an overture by the client or unsolicited from the other person without prior contact from the client. Assn. of the Bar of the City of N.Y. Formal Op. 2002-3 (2002).
Still, some other potential variants of direct communication need to be considered. If the discussion is going to be with the in-house counsel of another party, the inquiring lawyer must first determine the nature of the in-house counsel’s role in the matter and of the role the in-house counsel will have in the discussion. If it is reasonable to believe that the in-house counsel is then acting as a lawyer for the entity, rather than a participant in or witness to the events, the inquiring lawyer may also join in the conversation. But, if the in-house counsel was a participant in the events at issue or will be a potential fact witness in the matter, the in-house lawyer should be treated as a non-lawyer employee; so that it will not generally be appropriate to join the conversation. Assn. of the Bar of the City of N.Y. Op. 2007-1 (2007); ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 443 (2006).
Less clear is whether a lawyer can listen in to a direct communication between his or her client and the other party involved. The better practice would be not to do so unless counsel for the other party has been advised and agrees. In any event, when listening, the lawyer should not provide advice to the client during the conversation without the knowledge and consent of opposing counsel. NYSBA Op. 768 (2003). In other words, if the lawyer is supposed to be merely listening, the lawyer should confine himself or herself accordingly. Cf. Mori v. Saito, 785 F.Supp.2d 427 (S.D.N.Y. 2011), permitting listening in to an unsolicited call from someone who declined to identify himself and did not say whether he was represented by counsel.
Government lawyers representing their agency or office are given more latitude to participate actively in a direct discussion where the other party’s counsel is not present or participating is given at such a meeting. But, the government lawyer must be careful not to overreach at such a meeting; indeed, doing so may cause information gained in the discussion to be inadmissible. See, NYSBA Op. 768 (2003); NYSBA Op. 728 (2000).
Does Rule 4.2 Apply to Accessing or Communicating Via Social Media?
The rapid and extensive explosion of social media has invited interest in such platforms as a means to obtain helpful information or even evidence. At the same time, that has spawned questions about whether accessing and using information in or from social media violates the No-Contact Rule. Social media sites may provide pertinent insight as to the party hosting or posting information on such media (e.g. knowledgeable sources or potential witness in transactions or litigation, jurors or even judges).
New York case law has concluded that, when an individual puts something on the internet, or posts on social media, that person does not desire, and in any event cannot have an expectation, that the information will be or be kept confidential. People v. Harris, 36 Misc.3d 868, 874 (Sup. Ct. N.Y. Co. 2010). Consistent with that conclusion, recent ethics opinions in New York allow a lawyer to access information on publicly available social media and other sites whose content is accessible to all members, without the knowledge or consent of the person involved or that person’s attorney. N.Y. County Lawyers Assn. Op. 745 (2013). But recent opinions elsewhere add that, while a lawyer may access social media of others, the lawyer may not use social media to contact those persons if they are represented by counsel unless that counsel consents. Pa. Bar Assn. Op. 300, at 8-9 (2014); San Diego Bar Assn. Op. 2 (2011).
In allowing access to social media sites, New York opinions have reasoned that accessing publicly available information on such sites is no different from accessing other publicly available information and may provide usable evidence for impeachment. NYSBA Op. 843 (2010). Consistent with that rationale, evidence on a blog was allowed and proved material, indeed apparently decisive, in contradicting a party’s claim that she was disabled in BM v. DM, 31 Misc.3d 1211(A) (N.Y. Sup. Ct. 2011).
But, even where access is allowed, access and use of the information is not unlimited. Access may not be proper if the social media account is restricted. Moreover, deception may not be used to get the information. For example, as explained in NYSBA Op. 843 (2010), one may not use a third party to “friend” the “owner” of the a page on the site or otherwise seek to gain access to a restricted account. Accord Pa. Bar Assn. Op. 02 (2009). Also, access to a restricted site should not be sought if the lawyer knows that the person who has posted the information is represented by counsel as to the matter at issue. In that event, a lawyer is well-advised to treat the social media site the same way that the lawyer would in trying to talk directly to the person, and to seek consent or a court ruling (e.g. in discovery if in litigation) before trying to access the site. For recent detailed discussion of these questions, see, Pa. Bar Assn. Op. 300 at 9-12 (2014); see also, Ky. Bar Assn. Op. KBA E-434 (2012).
As with other issues, ethics rules do not necessarily determine if access to a social media site will actually be held to be proper by a court. Rather, there, the relevance and purpose of the request will likely determine if access is allowed. Thus, in Tapp v. NYS Urban Development Corp., 102 A.D.3d 620, 620–21 (1st Dept. 2013), the court ruled that a party who seeks discovery of a social media account (a Facebook account) must present facts to show that there is reason to believe the account will have information which is relevant to the case at hand. Accord Romano v. Steelcase Inc., 30 Misc.3d 426 (Sup. Ct. N.Y. Co. 2010). In McCann v. Harleysville Ins. Co., 78 A.D.3d 1524, 1525 (4th Dept. 2010), the court denied discovery of the plaintiff’s social media account since the seeker was not able to show relevance. See also, Kregg v. Maldanado, 98 A.D.3d 1289 (4th Dept. 2012).
On the other side of the question, counsel for the posting party may advise, indeed may have an obligation to advise, the client what the client should post and even whether to take down postings that might be damaging. See, N.Y. County Lawyers Assn. Op. 745 (2013); Accord N.C. Formal Ethics Op. 5 (2014); Fla. Proposed Advisory Op. 14-1 (2015). But, when a matter is at the point where there is a duty to preserve potential evidence, deletion of posts should not be advised. To do otherwise may cause sanctions or other serious consequences if potentially significant evidence has been destroyed or spoliated. NYRPC Rule 3.4 (2009); see, VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33 (N.Y. 1st Dept. 2012); In re M.B. Murray, 2013 WL 5630414, at *2 (Va. Bar Disc. Bd. 2013), five year suspension for advising removal of material from Facebook.
In sum, a lawyer is advised to proceed with caution when seeking to contact another party who is represented by counsel. The rules and cases discussed in this article provide guidance to common circumstances which may arise, and hopefully also provide direction regarding where a lawyer should turn — or the analysis he or she should undertake — when faced with a comparable situation.
Martin I. Kaminsky is General Counsel of Greenberg Traurig LLP. Prior to taking that position, he was trial and appellate counsel in cases involving securities, commodities, antitrust, corporate, contract, discrimination, legal malpractice and other business litigation issues.
Maren J, Messing is an associate at Patterson Belknap Webb & Tyler LLP, involved in a variety of cases. Prior to joining that firm, she clerked in the federal district and appeals courts in New York.
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