1994-11

QUESTION:

“This is to request a formal opinion concerning the rather
unusual situation which I discussed with you by phone on
August 31, 1994, concerning contact with prospective
witnesses employed by the defendant.

I primarily represent plaintiffs in employment
discrimination cases and presently have about twenty cases
pending against one particular defendant. Of those twenty
cases, twelve to fourteen are consolidated cases based upon
the ‘Americans With Disabilities Act’; two or three involve
race discrimination claims; two of the cases involve sex
claims; and one of the cases involved a national origin
claim. Each type claim is unrelated to the other claims.
The
ADA claims are hourly employees and the other clients are
managerial employees. I have represented the managerial
employees for some time and began representing them prior
to
my undertaking the representation of the plaintiffs in the
ADA cases.

All of the cases which are addressed above are continuing
matters upon which I must communicate with my clients on a
fairly regular basis.

Recently, the defendant’s attorney designated one of my
clients in the sex case as defendant’s prospective witness
in the ADA cases and noted that this individual should not
be contacted by me because conversations would be protected
by the defendant’s attorney-client privilege.

Obviously, it will be necessary for me to continue to have
ex parte communications with my clients who are
managerial/supervisory personnel. I can advise individuals
that they are not to discuss the ADA case or each others’
cases with me. This causes some real practical problems,
particularly since one particular supervisory employee has
referred several of the plaintiffs to me and advised me in
doing so of his belief that they have been the subject of
discrimination.

In light of the aforesaid, I need to have an opinion with
respect to the following:

1. What are my ethical obligations with
respect to discussions with my
managerial/supervisory clients who
have knowledge of the defendant’s
general employment policy matter; and

2. What are my ethical obligations with
respect to discussions with my
managerial/supervisory clients who
have referred other employees to me,
who may have knowledge of specific
discriminatory acts which may have
been committed by higher managerial
employees; and

3. What are the defendant’s ethical
obligations with respect to speaking
to my managerial/supervisory clients
concerning other individuals’ cases.

As these cases are presently pending, I would appreciate
your advising as to what I should do in this rather
complicated situation.”

ANSWER:

Whether you can talk with your so-called “managerial/
supervisory clients” about matters outside their own cases
depends on the level of their authority within the
defendant’s personnel structure. The defendant can talk
with
your clients about unrelated cases involving the defendant
because they are not represented in those matters.

DISCUSSION:

In RO-88-34, the Disciplinary Commission essentially held
that ex parte contact of an organization’s employees was
not
ethically proper under DR 7-104(A)(1) if the employee was
an
executive officer; or, someone who by virtue of their
position, could bind the organization by their testimony,
or
someone for whose conduct the organization could be held
vicariously liable. On January 1, 1991, the Alabama Rules
of
Professional Conduct became effective. Rule 4.2 deals with
the issue of communicating with a person represented by
counsel The Comment to Rule 4.2 states as follows:

“In the case of an organization, this Rule
prohibits communications by a lawyer for one
party concerning the matter in representation
with persons having a managerial responsibility
on behalf of the organization, and with any
other person whose act or omission in connection
with that matter may be imputed to the organization
for purposes of civil or criminal liability or
whose statement may constitute an admission on
the part of the organization.”

In analyzing these three categories of “protected”
employees, it is the Disciplinary Commission’s
understanding
that “persons having a managerial responsibility on behalf
of the organization” was intended to cover employees who
have been given the authority to formally act or speak for
the organization, and can legally bind it. Employees of
this
status are usually found in the “control group” of the
organization. While many employees may have a supervisory
position of one sort or another, they are not necessarily
authorized to speak for the organization in an official
sense. Only those employees are protected by this rule.

The other two exceptions referred to in the Comment cover
persons actually responsible for the conduct giving rise to
the organization’s potential liability regardless of status
in the organization and employees whose statements would be
admissible under evidentiary rules like Rule 801(D)(2)(d)
of
the Federal Rules of Evidence dealing with admission by a
party-opponent.

If your clients with “managerial/supervisory” duties are
not
in the control group of the organization, then you can talk
with them about anything regarding the ADA cases, either
general or specific to the cases. If the clients are
protected by application of the above discussion, then you
can only talk to them about their own particular cases.
Defense counsel can talk with your managerial/supervisory
clients about the cases of others because your clients are
not represented by you or anyone else in those matters.

MLM/vf

9/22/94

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