In re Disciplinary Proceeding Against Haley, 126 P.3d 1262 (Wash.
2006)
Owens, J.
Attorney Jeffrey T. Haley appeals the recommendation of the
Disciplinary Board of the Washington State Bar Association that Haley
was subject to a six-month suspension for knowingly violating RPC
4.2(a), which provides that, “in representing a client, a lawyer shall
not communicate with a party represented by another lawyer.”
Although we hold that, under RPC 4.2(a), a lawyer acting pro se is
prohibited from contacting a party represented by counsel in the matter,
we apply our interpretation of RPC 4.2(a) prospectively only and dismiss
the violation.
Facts
In 1994, Haley filed a lawsuit against Carl Highland, the former
chief executive officer of a defunct closely held corporation, Coresoft,
of which Haley was formerly a shareholder and board member. Initially,
Haley acted pro se in the matter but hired counsel when the case went to
trial in November 1995. After the trial ended, Haley’s counsel filed
notice of withdrawal and Haley reverted to pro se status as to appeal
and collection issues. Highland was represented by various attorneys at
all times during this matter, and Haley knew that Highland was
consistently represented by counsel.
The hearing officer and Board concluded that Haley’s improper contact
with a represented party arose out of two incidents. First, while Haley
was acting pro se after the trial, he sent a letter to Highland and his
wife proposing settlement. The letter was dated September 9, 1996, and
stated in full as follows:
I am about to spend approximately $25,000 on costs and attorneys fees
for the appeal. If the appeal is successful, the personal earnings of
both Ronda Hull and Carl Highland will be subject to garnishment to
satisfy my judgment and the judgment now held by Carl Highland will be
overruled. Also, the amount I am about the [sic] spend on costs and
attorneys fees will be added to the judgment. This is the last
opportunity to settle the case before I spend the money on the appeal.
This settlement offer will not be open after this week and may be
withdrawn at any time if it is not promptly accepted. I am offering that
all claims and judgments between the parties be releases [sic] with no
payments. Please respond directly to me.
Highland forwarded the letter to his attorney who, in turn, suggested
to Haley that the letter constituted a violation of RPC 4.2(a) and
warned him not to have any further contact with Highland. Second, on
January 31, 1997, Haley again contacted Highland, this time by
telephone. Haley left the following voice message on Highland’s
phone:
Carl, this is Jeff Haley. I hope your attorneys have told you Jim
Bates decided that your judgment against me is collectable only from my
separate assets and I have none; they’re all community assets. And,
therefore, your judgment is uncollectable [sic]. And the chance for
appeal of that determination by Jim Bates has run so you can’t appeal it
so that if the appeal proceeds my position can only improve and yours
can only get worse and if you have nothing collectable there’s no chance
of ever getting anything collectable. It seems to me that we ought to
settle this case and if we do so Monday there’ll be an opportunity on
Monday to do so if you’re interested. Give me a call.”
In his “Amended Findings of Fact and Conclusions of Law,” the hearing
officer stated that Haley’s letter and phone message were “clearly
prohibited” by RPC 4.2(a), but he acknowledged that there was some
authority supporting Haley’s position that attorneys acting pro se are
not subject to the prohibition. Ultimately, in his “Additional Findings
of Fact, Application of Standards, and Recommendation,” the hearing
officer determined that, “because of the specific language of RPC 4.2
(i.e., ‘In representing a client’) and because of the apparent absence
of authority within the state of Washington on this specific issue,
Mr. Haley could have harbored a sincere belief that contacts with a
represented opposing party were not prohibited.” Consequently, the
hearing officer concluded that the violation was “negligent” and that
the presumptive sanction was thus a reprimand.
Deleting the hearing officer’s conclusion that Haley’s violation was
negligent, the Board substituted its contrary determination that
“Haley’s mental state was knowledge” and that the presumptive sanction
was therefore a suspension. In doing so, the Board took note that Haley
knew Highland was represented by counsel at all times and stated that a
“reasonable reading of RPC 4.2 prohibits a lawyer, while representing
himself or herself, from contacting a represented party.” The Board also
faulted Haley for not “taking time to determine whether his conduct was
an ethical violation.”
The hearing officer recommended that Haley be reprimanded for the
violation. The Board recommended a six-month suspension.
Does RPC 4.2(a) prohibit a lawyer who is acting pro se from
contacting a party who is represented by counsel? If so, should the rule
be applied in the present case?
Analysis
Applicability of RPC 4.2(a) to Lawyer Acting Pro Se. RPC
4.2(a) reads in full as follows:
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 rule is virtually identical to model rule 4.2. While we have not
formally adopted the commentary to the ABA Annotated Model Rules, we
have noted that it “may be ‘instructive in exploring the underlying
policy of the rules.’” As the comment to model rule 4.2 explains, the
rule aims to protect those represented by counsel “against possible
overreaching by other lawyers who are participating in the matter,
interference by those lawyers with the client-lawyer relationship and
the uncounselled disclosure of information relating to the
representation.” In Carmick, we acknowledged that “the rule’s
purpose is to prevent situations in which a represented party is taken
advantage of by adverse counsel.”
At issue in the present case is whether RPC 4.2(a) applies to lawyers
acting pro se—or, more precisely, whether a lawyer who is representing
himself or herself is, in the words of RPC 4.2(a), “representing a
client.” This court has not previously addressed this issue; nor has the
WSBA issued an ethics opinion, formal or informal, on the question.
Other jurisdictions that have considered the rule’s applicability to
lawyers acting pro se have generally concluded that the policies
underlying the rule are better served by extending the restriction to
lawyers acting pro se.
Haley asks this court to take the contrary view and hold that the
plain meaning of the word “client” in RPC 4.2(a) precludes application
of the rule to a lawyer acting pro se. The word “client” is variously
defined as “a person or entity that employs a professional for advice or
help in that professional’s line of work,” and “a person who engages the
professional advice or services of another.” Thus, for the rule to apply
to lawyers acting pro se, such lawyers would, in effect, be employing or
engaging themselves for advice, help, or services. This, as Haley
contends, suggests that lawyers who are acting pro se are excluded from
the scope of the rule because such lawyers have no client.
In the alternative, Haley maintains that, even if RPC 4.2(a) were
construed to restrict pro se lawyers from contacting represented
parties, we should conclude that the rule as applied to him, a lawyer
proceeding pro se, was unconstitutionally vague, violating his
constitutional due process rights. Such a resolution finds support in
Schaefer. There, the Nevada State Supreme Court relied on the
principle that “a statute or rule is impermissibly vague if it ‘either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as
to its application.’” The Schaefer court based its
determination that Nevada’s Supreme Court Rule 182, a rule identical to
RPC 4.2(a), was unconstitutionally vague on “the absence of clear
guidance” from the Nevada State Supreme Court and on “the existence of
conflicting authority from other jurisdictions.”
Both factors relied on in Schaefer are present here. First,
as noted above, no prior opinion of this court has addressed the
application of RPC 4.2(a) to lawyers proceeding pro se. Second, in late
1996 and early 1997 when Haley contacted Highland, authority permitting
such contacts counterbalanced the prohibitions then existing from four
jurisdictions. The comment to rule 2-100 of the California RPCs, a rule
identical to RPC 4.2(a) in all material respects, explicitly permits a
lawyer proceeding pro se to contact a represented party:
The rule does not prohibit a lawyer who is also a party to a legal
matter from directly or indirectly communicating on his or her own
behalf with a represented party. Such a member has independent rights as
a party which should not be abrogated because of his or her professional
status. To prevent any possible abuse in such situations, the counsel
for the opposing party may advise that party (1) about the risks and
benefits of communications with a lawyer-party, and (2) not to accept or
engage in communications with the lawyer-party.
Likewise, a comment to the restatement specifically provides that “a
lawyer representing his or her own interests pro se may communicate with
an opposing represented nonclient on the same basis as other
principals.”
Alongside these explicit statements permitting the questioned
contact, other authorities supported a reasonable inference that our RPC
4.2(a) did not foreclose a pro se lawyer’s communication with a
represented opposing party. For example, the comparable rule in Oregon,
DR 7-104(A)(1), put lawyers acting pro se squarely within the rule’s
ambit:
A During the course of the
lawyer’s representation of a client, a lawyer shall not: 1 Communicate or cause another to communicate
with a person the lawyer knows to be represented by a lawyer. This
prohibition includes a lawyer representing the lawyer’s own
interests.
The absence of an explicit prohibition in RPC 4.2(a) could have
suggested that Washington’s rule was narrower in scope than Oregon’s and
did not apply to lawyers acting pro se. Additionally, the commentary to
model rule 4.2 includes the statement that “parties to a matter may
communicate directly with each other.” Unlike the commentary to the
restatement and to California’s RPC 2-100, this comment does not
pointedly refer to a lawyer-party acting pro se; consequently, the
breadth of the statement permits an inference that all parties may
communicate unreservedly with each other. Finally, the holding in
Pinsky v. Statewide Grievance Committee, appears to call into
question the policy concerns supporting the application of RPC 4.2(a) to
lawyers acting pro se. In Pinsky, the Connecticut State Supreme
Court concluded that a represented lawyer-party had not violated an
identical version of RPC 4.2(a) when he directly contacted his landlord,
who was also represented by counsel, during an eviction matter. The
Pinsky court took note that “contact between litigants is
specifically authorized by the comments under rule 4.2” and concluded
that Pinsky was not “representing a client” as stated in the rule. The
Pinsky court thus determined that communication between a
represented lawyer-party and a represented nonlawyer party did not
conflict with a key purpose of RPC 4.2(a)—the protection of a
represented nonlawyer party from “possible overreaching by other lawyers
who are participating in the matter.” Because the Pinsky
decision did not address why contacts from a lawyer acting pro se would
pose a greater threat of overreaching than would contacts from a
represented lawyer-party, Pinsky provides further equivocal
authority on the application of RPC 4.2(a) to lawyers acting pro se.
In sum, consistent with the resolution of the same issue in
Schaefer, we hold that a lawyer acting pro se is “representing
a client” for purposes of RPC 4.2(a), but given the absence of a prior
decision from this court, along with the presence of conflicting or
equivocal authority from other jurisdictions and legal commentaries, we
find the rule impermissibly vague as to its applicability to pro se
attorneys and thus apply our interpretation of the rule prospectively
only. We therefore dismiss the violation alleged in count 2.
Conclusion
We hold that RPC 4.2(a) prohibits a lawyer who is representing his
own interests in a matter from contacting another party whom he knows to
be represented by counsel. However, because we conclude that RPC 4.2(a)
was impermissibly vague as applied to Haley, we apply our interpretation
of RPC 4.2(a) prospectively only and thus dismiss.
Madsen, J. (concurring).
I agree with part one of Justice Sanders’ concurrence. This court
currently has a new set of RPCs pending before it. Because I agree with
the majority that the better policy is to include self-represented
lawyers within the prohibition of RPC 4.2(a), I would revise that rule
in conjunction with the review of the RPCs and avoid the issue of
prospectivity.
Sanders, J. (concurring).
The majority holds that self-represented lawyers are “representing a
client” under RPC 4.2(a) and therefore may not contact a represented
party. But it refrains from sanctioning Haley, implicitly holding that
the scope of RPC 4.2(a) is ambiguous. I concur only in the result,
because the majority incorrectly construes RPC 4.2(a). The plain
language of RPC 4.2(a) exempts self-represented lawyers. And the rule of
lenity requires strict and narrow construction of an ambiguous penal
statute. We must apply RPC 4.2(a) prospectively just as we apply it
today.
I. The Plain Language of RPC 4.2(A) Permits Self-Represented Lawyers to
Contact Represented Parties
Court rules like the Code of Professional Responsibility “are subject
to the same principles of construction as are statutes.” Thus, when
interpreting a rule we give “the words their ordinary meaning, reading
the language as a whole and seeking to give effect to all of it.” If the
plain language of the rule is unambiguous, additional interpretation is
unnecessary.
The plain language of RPC 4.2(a) unambiguously exempts
self-represented lawyers. “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.” A “client” is “a person who consults or engages the services
of a legal advisor,” or a “person or entity that employs a professional
for advice or help in that professional’s line of work.” In other words,
a “client” is a third party who engages a lawyer. Because
self-represented lawyers have no client, under RPC 4.2(a) they may
contact a represented party.
The majority concedes that RPC 4.2(a) applies only when a lawyer is
“representing a client” but nonetheless construes it to cover
self-represented lawyers. Apparently, the majority concludes that
self-represented lawyers are “employing or engaging themselves for
advice, help, or services.”
This ingenious bit of legal fiction illustrates the wisdom of
avoiding interpretations “conceivable in the metaphysical sense” when
the plain language of a statute “is both necessary and sufficient.”
Assuming that a self-represented lawyer represents a “client” certainly
produces the majority’s preferred outcome. Unfortunately, it does so
only at the expense of coherence. Lawyers cannot retain themselves any
more than pro se litigants can claim legal malpractice or ineffective
assistance of counsel. Undoubtedly, wise lawyers follow their own
counsel. But it is a neat trick indeed to advise oneself.
The majority’s claim to follow an emerging majority rule is
unavailing. Indeed, it cites decisions from six states concluding that
self-represented lawyers are their own clients. But none offers any more
convincing a rationale for this curious conclusion than the majority.
Conclusory statements cannot substitute for legal reasoning, and another
court’s error cannot justify our own.
Likewise, the majority’s reliance on the “purpose” of RPC 4.2(a) is
misplaced. As the author of the court rules, we are “in a position to
reveal the actual meaning which was sought to be conveyed.” But in the
interest of certainty and consistency, we approach them “as though they
had been drafted by the Legislature.” Whatever the purpose of RPC
4.2(a), it cannot extend to persons and actions its plain language
excludes. We may not expand the scope of a rule by fiat. If we conclude
that self-represented lawyers should not contact represented parties, we
should simply rewrite the rule to clearly prohibit that conduct. Other
states have already done so. Lawyers should not have to read slip
opinions to divine their professional obligations.
II. The Rule of Lenity Requires a Construction of RPC 4.2(A) Exempting
Self-Represented Lawyers
Even assuming that the plain language of RPC 4.2(a) is somehow
ambiguous, the rule of lenity requires a strict and narrow construction
exempting self-represented lawyers. The rule of lenity is a venerable
canon of statutory interpretation, requiring courts “to interpret
ambiguous criminal statutes in the defendant’s favor.” While the Rules
of Professional Conduct are only “quasi-criminal,” the rule of lenity
applies to both criminal and quasi-criminal statutes. The deciding
factor is the nature of the sanction imposed.
As a general rule, courts apply the rule of lenity to any statute
imposing penal sanctions. “We are mindful of the maxim that penal
statutes should be strictly construed.” A statute is penal if it “can be
punished by imprisonment and/or a fine” and remedial if it “provides for
the remission of penalties and affords a remedy for the enforcement of
rights and the redress of injuries.”
The Rules of Professional Conduct are penal because they concern
punishing an offender, not compensating a victim. Professional
discipline “is punitive, unavoidably so, despite the fact that it is not
designed for that purpose.” While the “purpose of disciplining an
attorney is not primarily to punish the wrongdoer,” punishment is an
important purpose—and a necessary consequence—of professional
discipline.
Courts have long recognized that disbarment is “penal in its nature”
and subject to the rule of lenity. The same holds for all other
sanctions. “Because attorney suspension is a quasi-criminal punishment
in character, any disciplinary rules used to impose this sanction on
attorneys must be strictly construed resolving ambiguities in favor of
the person charged.”
In his dissent, Chief Justice Alexander suggests that the Rules of
Professional Conduct can tolerate a degree of vagueness. But RPC 4.2(a)
is not vague. It is ambiguous. And the Rules of Professional Conduct
certainly cannot tolerate ambiguity.
A statute is ambiguous if it “refers to P, P can alternatively
encompass either a or b, and it is beyond dispute that the defendant did
a” and vague if it “refers to X, but we cannot tell whether the disputed
event is an X.” No one disputes what Haley did: While representing
himself, he contacted a represented party. The only question is whether
the term “representing a client” encompasses self-represented lawyers,
as well as lawyers representing third parties. And if the term
“representing a client” is “susceptible to more than one reasonable
meaning,” it is ambiguous.
Courts routinely apply the rule of lenity to ambiguous statutes. And
the rule of lenity is peculiarly appropriate to the Rules of
Professional Conduct. We have recognized that “in a disciplinary
proceeding, all doubts should be resolved in favor of the attorney.”
Because lawyers “are subject to professional discipline only for acts
that are described as prohibited in an applicable lawyer code, statute,
or rule of court,” courts “should be circumspect in avoiding overbroad
readings or resorting to standards other than those fairly encompassed
within an applicable lawyer code.” Application of the rule of lenity
reflects that caution. It demands that we adopt the stricter, narrower
construction, excluding self-represented lawyers.
III. Conclusion
The majority objects to the plain language of RPC 4.2(a) only because
it believes that permitting self-represented lawyers to contact
represented parties would violate the “purpose” of the rule. But the
putative “spirit and intent” of a rule can trump only a “strained and
unlikely” interpretation. And the plain language of RPC 4.2(a) is
neither strained nor unlikely. It prohibits a lawyer representing a
client—but not a self-represented lawyer—from contacting a represented
party. As the majority concedes, several commentators and courts have
found the plain language of essentially identical rules entirely
unambiguous. We must not manufacture ambiguity and rely on legal
fictions to arrive at a preferred result. Especially when we may simply
write that result into law.
Alexander, C.J. (dissenting).
I agree with the majority that RPC 4.2(a) prohibits lawyers who are
representing themselves from communicating directly with opposing,
represented parties unless they first obtain the consent of the parties’
counsel. I disagree, however, with the majority’s decision to limit
application of this important rule to future violators. I know of no
authority that supports imposition of a rule of professional conduct
prospectively only. I believe, therefore, that this court should suspend
Jeffrey Haley from the practice of law for his violation of RPC 4.2(a).
The violation is especially egregious in light of Haley’s claim that he
“studied the rule” before directly contacting his opposing party, and in
view of the fact that he contacted the party a second time after the
party’s lawyer warned him that doing so would violate RPC 4.2(a).
Because the majority concludes that Haley should not be subjected to
discipline for a violation of RPC 4.2(a), I dissent.
The majority correctly observes that among states considering the
question with which we are here presented, the prevailing trend has been
to apply RPC 4.2(a) to attorneys acting pro se, as was Haley, and not
just to attorneys representing someone other than themselves. The
majority acknowledges, additionally, that in late 1996 and early 1997,
when Haley twice attempted to negotiate a settlement without going
through the opposing party’s lawyer, at least four jurisdictions already
had concluded that RPC 4.2(a) prohibited such contacts. Yet none of the
four jurisdictions mentioned by the majority applied the rule to pro se
attorneys on a prospective basis only, as the majority does here.
Rather, all four jurisdictions applied the rule to the facts before
them, as this court should do. These four opinions, all cited by the
majority, are sound and make it clear that at the time Haley engaged in
the prohibited conduct, the weight of authority supported the
disciplining of violators and did not even hint at the prospective-only
application embraced by the majority in this case. In shielding Haley
from application of RPC 4.2(a), the majority borrows from the reasoning
of the Nevada Supreme Court in In re Discipline of Schaefer.
There, the Nevada court declined to punish an attorney’s violation of
the Nevada equivalent of RPC 4.2(a) because of: (a) the “absence of
clear guidance” from the court, and (b) “conflicting authority from
other jurisdictions” as to whether the rule applied to pro se attorneys.
In effect, the majority establishes a new test: if there is any doubt
about how a rule will be construed, a violator will not be punished.
That is a dangerous message to send.
Furthermore, whereas the Schaefer court relied on due
process principles articulated by the United States Supreme Court in
Connally in applying the Nevada rule prospectively, it is worth
noting that this court has never drawn from Connally the
proposition that discipline is inappropriate just because a rule is
being interpreted for the first time. In fact, in Haley v. Medical
Disciplinary Board, the only discipline case in which this court
cited Connally, we affirmed sanctions against a physician for
violating a statute prohibiting “moral turpitude” although we recognized
“uncertainties associated with” the statutory language in question.
Thus, this court has previously declined to interpret Connally
in the way the Nevada court did in Schaefer and the majority
does here—as if professional license holders have a due process right to
avoid discipline simply because a court is newly construing the rule in
question. Such an interpretation will have far-reaching impact, as many
discipline cases that come before this court raise an issue of
construction. In declining to sanction Haley for violating RPC 4.2(a),
despite the fact that Haley had “studied” the rule and should have known
that the prevailing construction prohibited his conduct, the majority
suggests that questionable conduct will be tolerated as long as there is
no prior Washington court decision exactly on point.
We must remember that our purpose in disciplining attorneys is to
“protect the public and to preserve confidence in the legal system.” In
Curran, an attorney argued that he should not be punished for
violating RLD 1.1(a) because, in forbidding actions that reflect
“disregard for the rule of law,” the rule was unconstitutionally vague.
This court said, “We choose to give these words a narrowing
construction. This law is not so vague as to be unconstitutional, given
this limiting construction.” We noted that “a statute will not be
considered unconstitutionally vague just because it is difficult to
determine whether certain marginal offenses are within the meaning of
the language under attack.” This court suspended the attorney, Curran,
saying, “Standards may be used in lawyer disciplinary cases which would
be impermissibly vague in other contexts.” Just as we disciplined Curran
there, despite uncertainty about the rule in question, so should Haley
be disciplined for violating RPC 4.2(a) in order to “protect the public
and to preserve confidence in the legal system.”
Curran also weighs against the position taken by Justice
Sanders in his concurring opinion that attorney discipline is a
punishment scheme and therefore is subject to the rule of lenity—a
criminal law doctrine. We said in that case, “The purposes of bar
discipline do not precisely duplicate the purposes of the criminal law.”
More notably, we have said numerous times that “punishment is not a
proper basis for discipline.” In In re Disbarment of Beakley,
we said:
Neither disbarment nor suspension is ordered for the purpose of
punishment, but wholly for the protection of the public. When a matter
such as this comes before the court, the question presented is not: What
punishment should be inflicted on this man? The question presented to
each of its judges is simply this: Can I, in view of what has been
clearly shown as to this man’s conduct, conscientiously participate in
continuing to hold him out to the public as worthy of that confidence
which a client is compelled to repose in his attorney?
Thus, this court has long rejected the notion that attorney
discipline is penal, and the concurrence cannot point to any discipline
case in which we have applied the rule of lenity to resolve ambiguity in
the attorney’s favor.
In sum, because the purpose of attorney discipline is to protect the
public, it is our duty to enforce RPC 4.2(a) in this case. The majority
provides no authority for applying RPC 4.2(a) to pro se attorneys
prospectively only. I would apply the rule to Haley and suspend him for
six months.
Niesig v. Team I, 76 N.Y.2d 363 (N.Y. 1990)
Kaye, J.
Plaintiff in this personal injury litigation, wishing to have his
counsel privately interview a corporate defendant’s employees who
witnessed the accident, puts before us a question that has generated
wide interest: are the employees of a corporate party also considered
“parties” under Disciplinary Rule 7-104 (A) (1) of the Code of
Professional Responsibility, which prohibits a lawyer from communicating
directly with a “party” known to have counsel in the matter? The trial
court and the Appellate Division both answered that an employee of a
counseled corporate party in litigation is by definition also a “party”
within the rule, and prohibited the interviews. For reasons of policy,
we disagree.
As alleged in the complaint, plaintiff was injured when he fell from
scaffolding at a building construction site. At the time of the accident
he was employed by DeTrae Enterprises, Inc.; defendant J.M. Frederick
was the general contractor, and defendant Team I the property owner.
Plaintiff thereafter commenced a damages action against defendants,
asserting two causes of action centering on Labor Law § 240, and
defendants brought a third-party action against DeTrae.
Plaintiff moved for permission to have his counsel conduct ex parte
interviews of all DeTrae employees who were on the site at the time of
the accident, arguing that these witnesses to the event were neither
managerial nor controlling employees and could not therefore be
considered “personal synonyms for DeTrae.” DeTrae opposed the
application, asserting that the disciplinary rule barred unapproved
contact by plaintiff’s lawyer with any of its employees. Supreme Court
denied plaintiff’s request, and the Appellate Division modified by
limiting the ban to DeTrae’s current employees.
The Appellate Division concluded, for theoretical as well as
practical reasons, that current employees of a corporate defendant in
litigation “are presumptively within the scope of the representation
afforded by the attorneys who appeared [in the litigation] on behalf of
that corporation.” Citing Upjohn Co. v United States, the court
held that DeTrae’s attorneys have an attorney-client relationship with
every DeTrae employee connected with the subject of the litigation, and
that the prohibition is necessitated by the practical difficulties of
distinguishing between a corporation’s control group and its other
employees. The court further noted that the information sought from
employee witnesses could instead be obtained through their
depositions.
In the main we disagree with the Appellate Division’s conclusions.
However, because we agree with the holding that DR 7-104(A)(1) applies
only to current employees, not to former employees, we modify rather
than reverse its order, and grant plaintiff’s motion to allow the
interviews.
We begin our analysis by noting that what is at issue is a
disciplinary rule, not a statute. In interpreting statutes, which are
the enactments of a coequal branch of government and an expression of
the public policy of this State, we are of course bound to implement the
will of the Legislature; statutes are to be applied as they are written
or interpreted to effectuate the legislative intention. The disciplinary
rules have a different provenance and purpose. Approved by the New York
State Bar Association and then enacted by the Appellate Divisions, the
Code of Professional Responsibility is essentially the legal
profession’s document of self-governance, embodying principles of
ethical conduct for attorneys as well as rules for professional
discipline. While unquestionably important, and respected by the courts,
the code does not have the force of law.
That distinction is particularly significant when a disciplinary rule
is invoked in litigation, which in addition to matters of professional
conduct by attorneys, implicates the interests of nonlawyers. In such
instances, we are not constrained to read the rules literally or
effectuate the intent of the drafters, but look to the rules as
guidelines to be applied with due regard for the broad range of
interests at stake. “‘When we agree that the Code applies in an
equitable manner to a matter before us, we should not hesitate to
enforce it with vigor. When we find an area of uncertainty, however, we
must use our judicial process to make our own decision in the interests
of justice to all concerned.’”
DR 7-104(A)(1), which can be traced to the American Bar Association
Canons of 1908, fundamentally embodies principles of fairness. “The
general thrust of the rule is to prevent situations in which a
represented party may be taken advantage of by adverse counsel; the
presence of the party’s attorney theoretically neutralizes the contact.”
By preventing lawyers from deliberately dodging adversary counsel to
reach—and exploit—the client alone, DR 7-104(A)(1) safeguards against
clients making improvident settlements, ill-advised disclosures and
unwarranted concessions.
There is little problem applying DR 7-104(A)(1) to individuals in
civil cases. In that context, the meaning of “party” is ordinarily plain
enough: it refers to the individuals, not to their agents and employees.
The question, however, becomes more difficult when the parties are
corporations [ … ].
The difficulty is not in whether DR 7-104(A)(1) applies to
corporations. It unquestionably covers corporate parties, who are as
much served by the rule’s fundamental principles of fairness as
individual parties. But the rule does not define “party,” and its reach
in this context is unclear. In litigation only the entity, not its
employee, is the actual named party; on the other hand, corporations act
solely through natural persons, and unless some employees are also
considered parties, corporations are effectively read out of the rule.
The issue therefore distills to which corporate employees
should be deemed parties for purposes of DR 7-104(A)(1), and that choice
is one of policy. The broader the definition of “party” in the interests
of fairness to the corporation, the greater the cost in terms of
foreclosing vital informal access to facts.
The many courts, bar associations and commentators that have balanced
the competing considerations have evolved various tests, each claiming
some adherents, each with some imperfection. At one extreme is the
blanket rule adopted by the Appellate Division and urged by defendants,
and at the other is the “control group” test—both of which we reject.
The first is too broad and the second too narrow.
Defendants’ principal argument for the blanket rule—correlating the
corporate “party” and all of its employees—rests on Upjohn v United
States. As the Supreme Court recognized, a corporation’s
attorney-client privilege includes communications with low- and
mid-level employees; defendants argue that the existence of an
attorney-client privilege also signifies an attorney-client
relationship for purposes of DR 7-104(A)(1).
Upjohn, however, addresses an entirely different subject,
with policy objectives that have little relation to the question whether
a corporate employee should be considered a “party” for purposes of the
disciplinary rule. First, the privilege applies only to confidential
communications with counsel, it does not immunize the underlying
factual information—which is in issue here—from disclosure to an
adversary. Second, the attorney-client privilege serves the societal
objective of encouraging open communication between client and counsel,
a benefit not present in denying informal access to factual information.
Thus, a corporate employee who may be a “client” for purposes of the
attorney-client privilege is not necessarily a “party” for purposes of
DR 7-104(A)(1).
The single indisputable advantage of a blanket preclusion—as with
every absolute rule—is that it is clear. No lawyer need ever risk
disqualification or discipline because of uncertainty as to which
employees are covered by the rule and which not. The problem, however,
is that a ban of this nature exacts a high price in terms of other
values, and is unnecessary to achieve the objectives of DR
7-104(A)(1).
Most significantly, the Appellate Division’s blanket rule closes off
avenues of informal discovery of information that may serve both the
litigants and the entire justice system by uncovering relevant facts,
thus promoting the expeditious resolution of disputes. Foreclosing all
direct, informal interviews of employees of the corporate party
unnecessarily sacrifices the long-recognized potential value of such
sessions. “A lawyer talks to a witness to ascertain what, if any,
information the witness may have relevant to his theory of the case, and
to explore the witness’ knowledge, memory and opinion—frequently in
light of information counsel may have developed from other sources. This
is part of an attorney’s so-called work product.” Costly formal
depositions that may deter litigants with limited resources, or even
somewhat less formal and costly interviews attended by adversary
counsel, are no substitute for such off-the-record private efforts to
learn and assemble, rather than perpetuate, information.
Nor, in our view, is it necessary to shield all employees from
informal interviews in order to safeguard the corporation’s interest.
Informal encounters between a lawyer and an employee-witness are not—as
a blanket ban assumes—invariably calculated to elicit unwitting
admissions; they serve long-recognized values in the litigation process.
Moreover, the corporate party has significant protection at hand. It has
possession of its own information and unique access to its documents and
employees; the corporation’s lawyer thus has the earliest and best
opportunity to gather the facts, to elicit information from employees,
and to counsel and prepare them so that they will not make the feared
improvident disclosures that engendered the rule.
We fully recognize that, as the Appellate Division observed, every
rule short of the absolute poses practical difficulties as to where to
draw the line, and leaves some uncertainty as to which employees fall on
either side of it. Nonetheless, we conclude that the values served by
permitting access to relevant information require that an effort be made
to strike a balance, and that uncertainty can be minimized if not
eliminated by a clear test that will become even clearer in
practice.
We are not persuaded, however, that the “control group” test—defining
“party” to include only the most senior management exercising
substantial control over the corporation—achieves that goal.
Unquestionably, that narrow (though still uncertain) definition of
corporate “party” better serves the policy of promoting open access to
relevant information. But that test gives insufficient regard to the
principles motivating DR 7-104(A)(1), and wholly overlooks the fact that
corporate employees other than senior management also can bind the
corporation. The “control group” test all but “nullifies the benefits of
the disciplinary rule to corporations.” Given the practical and
theoretical problems posed by the “control group” test, it is hardly
surprising that few courts or bar associations have ever embraced
it.
By the same token, we find unsatisfactory several of the proposed
intermediate tests, because they give too little guidance, or otherwise
seem unworkable. In this category are the case-by-case balancing test,
and a test that defines “party” to mean corporate employees only when
they are interviewed about matters within the scope of their employment.
The latter approach is based on rule 801(d)(2)(D) of the Federal Rules
of Evidence, a hearsay exception for statements concerning matters
within the scope of employment, which is different from the New York
State rule.
The test that best balances the competing interests, and incorporates
the most desirable elements of the other approaches, is one that defines
“party” to include corporate employees whose acts or omissions in the
matter under inquiry are binding on the corporation (in effect, the
corporation’s “alter egos”) or imputed to the corporation for purposes
of its liability, or employees implementing the advice of counsel. All
other employees may be interviewed informally.
Unlike a blanket ban or a “control group” test, this solution is
specifically targeted at the problem addressed by DR 7-104(A)(1). The
potential unfair advantage of extracting concessions and admissions from
those who will bind the corporation is negated when employees with
“speaking authority” for the corporation, and employees who are so
closely identified with the interests of the corporate party as to be
indistinguishable from it, are deemed “parties” for purposes of DR
7-104(A)(1). Concern for the protection of the attorney-client privilege
prompts us also to include in the definition of “party” the corporate
employees responsible for actually effectuating the advice of counsel in
the matter.
In practical application, the test we adopt thus would prohibit
direct communication by adversary counsel “with those officials, but
only those, who have the legal power to bind the corporation in the
matter or who are responsible for implementing the advice of the
corporation’s lawyer, or any member of the organization whose own
interests are directly at stake in a representation.” This test would
permit direct access to all other employees, and specifically—as in the
present case—it would clearly permit direct access to employees who were
merely witnesses to an event for which the corporate employer is
sued.
Apart from striking the correct balance, this test should also become
relatively clear in application. It is rooted in developed concepts of
the law of evidence and the law of agency, thereby minimizing the
uncertainty facing lawyers about to embark on employee interviews. A
similar test, moreover, is the one overwhelmingly adopted by courts and
bar associations throughout the country, whose long practical experience
persuades us that—in day-to-day operation—it is workable.
Finally, we note the particular contribution made by the various
amici curiae in this case; by highlighting the diverse contexts
in which the question may arise, their submissions have enlarged our
comprehension of the broad potential impact of the issue presented. In
so doing, however, they have also alerted us to the wisdom of flagging
what is in any event implicit in our decisions—that they are limited by
the facts before us and the questions put to us. Today’s decision
resolves the present controversy by allowing ex parte interviews with
nonmanagerial witnesses employed by a corporate defendant; even in that
limited context, we recognize that there are undoubtedly questions not
raised by the parties that will yet have to be answered. Defendants’
assertions that ex parte interviews should not be permitted because of
the dangers of overreaching, moreover, impel us to add the cautionary
note that, while we have not been called upon to consider questions
relating to the actual conduct of such interviews, it is of course
assumed that attorneys would make their identity and interest known to
interviewees and comport themselves ethically.
Accordingly, the order of the Appellate Division should be modified,
without costs, by reversing so much of the Appellate Division order as
denied plaintiff’s motion to permit ex parte interviews of current
DeTrae employees and, as so modified, the Appellate Division order
should be affirmed and the certified question answered in the
negative.