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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 21
The Committee is in receipt of an inquiry which may be posed as follows:
Counsel represents a plaintiff in a personal injury action. One of the third-party corporate defendant s employees was deposed during the discovery phase of the litigation as an eyewitness to the incident in question. Since that time, the employee, a friend of plaintiff s, has left the employ of the corporate defendant.
May counsel for plaintiff interview this former employee in preparation for trial?
DR 7-104(A) provides that during the course of his representation of a client, a lawyer shall not communicate with a party he knows to be represented by a lawyer in that matter, on the subject of that representation, without the consent of the attorney for the other party.
The purpose of this rule is to preserve the proper functioning of the attorney-client relationship and to shield the adverse party from improper approaches (N.Y.S.B.A. Ethics Op. #652). As was further explained in N.Y.S.B.A. Ethics Op. #463:
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“Where a person is represented by counsel, there is an absolute proscription which serves to bar any and all communications relating to the matter for which that person has retained counsel. In such instances, whether the communication amounts to the giving of legal advice or consists of a simple question is irrelevant. If a person is represented by counsel, absent such counsel s consent, the ethics of our profession require that no lawyer other than his own communicate with him on the subject of the representation and all forms of communication are proscribed.”
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A “party” includes corporate employees whose acts or omissions in the matter under
inquiry are binding on the corporation, or imputed to the corporation
for purposes of its liability, or employees implementing the
advice of counsel. All other employees may be interviewed informally.
(Niesig v. Team I, 76 14Y2d 363, 374.) Under the Niesig
test, counsel is prohibited from direct communications with
those officials, but only those who have the legal power to
bind the corporation or who have the legal responsibility for
implementing the advice of the corporation s lawyer, or any
employee whose interests are directly at stake (Id.). The Niesig
test permits direct access to all other employees, including
those who were merely eyewitnesses to an event for which the
corporate employer is sued. (Id. at 375). Finally, the Court
of Appeals in Niesig cautioned that the attorney conducting
the interview should make his or her identity and interests
known to the interviewees and otherwise comport himself or herself
ethically.
Here, counsel has represented that the former employee is a
mere witness to the incident giving rise to the litigation,
and thus, under Niesig, the proposed interview would
be permitted, even if he were a present employee. The fact that
he is a former employee is merely further justification for
permitting the interview (see, Massachusetts Bar Association,
Committee on Professional Ethics, Op # 82-7; see also, 42 Bus.
Lawyer 1053, 1058—9)
Accordingly, the question is answered in the affirmative.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein express the opinion of the Committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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