May a New Jersey lawyer conduct ex parte interviews of former employees of a corporate adversary that is represented by counsel?

Plain-English summary

The Committee was asked whether a lawyer may conduct ex parte interviews of former employees of a corporation that is an adverse party in litigation, and what limits the Rules of Professional Conduct impose. The inquiry arose from uncertainty after the Appellate Division's decision in State v. CIBA-GEIGY Corp., which addressed ex parte interviews of a corporate litigant's current employees.

The Committee concluded that the rationale of CIBA-GEIGY applies with equal force to former employees. It noted that the Appellate Division had rejected both the narrow reading (limiting the represented "party" to the named corporate entity) and the broad reading (barring all ex parte interviews, including of former employees), instead adopting the New York Court of Appeals' test from Niesig v. Team I.

Under that test, "party" includes employees whose acts or omissions in the matter are binding on the corporation (its "alter egos") or imputed to it for liability, and employees who implemented counsel's advice; all other employees may be interviewed informally. Applying the same framework to former employees, the Committee treated those falling within the Niesig categories as the represented party, off-limits without opposing counsel's consent, and left other former employees open to informal interview.

Currency note

This opinion was issued in 1992, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments and later case law on contact with a corporate party's current and former employees may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer interview a corporate opponent's former employees without going through opposing counsel?

A: Per the opinion, generally yes. The Committee concluded the RPC 4.2 analysis the Appellate Division adopted for current employees in State v. CIBA-GEIGY applies with equal force to former employees, so most former employees may be interviewed informally.

Q: Which former employees are still off-limits?

A: Those who fall within the Niesig definition of "party" the court adopted: former employees whose acts or omissions in the matter bound the corporation (its "alter egos") or are imputed to it for liability, and those who implemented counsel's advice.

Q: What rules govern the contact?

A: RPC 4.2 (communication with a represented person) defines who counts as the represented "party"; RPC 4.3 governs the lawyer's dealings with a former employee as an unrepresented person, including not stating or implying that the lawyer is disinterested.

Background and rules framework

The opinion interpreted New Jersey RPC 4.2 (communication with a person represented by counsel; Model Rule 4.2) and RPC 4.3 (dealing with an unrepresented person; Model Rule 4.3). It adopted the reasoning of the Appellate Division in State v. CIBA-GEIGY Corp., which followed the New York Court of Appeals' test in Niesig v. Team I for identifying which corporate employees constitute the represented "party."

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NJ RPC 4.2 (communication with a represented person)
• MR 4.3 / NJ RPC 4.3 (dealing with an unrepresented person)

Cases:

• State v. CIBA-GEIGY Corp., 247 N.J. Super. 314 (App. Div. 1991), ex parte interviews of a corporate litigant's employees
• Niesig v. Team I, 76 N.Y.2d 363 (1990), defining the corporate "party" for no-contact purposes
• Public Service Electric & Gas Co. v. Associated Electric & Gas Ins. Services, Ltd., 745 F. Supp. 1037 (D.N.J. 1990), the broad no-contact view the court rejected

See also

• NJ ACPE Op. 739: "Reply All" Group Emails Under RPC 4.2
• NJ ACPE Op. 746: RPC 4.2 and Self-Represented Lawyers
• NJ ACPE Op. 703: Pretextual Contact to Disqualify Adversary Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp668-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

1 N.J.L. 1705, November 2, 1992

132 N.J.L.J. 573, November 2, 1992

OPINION 668

Ex Parte Communication with Former Employees of Corporate Defendants

We are asked whether a lawyer may ethically conduct ex parte interviews of former employees of corporations that are adverse parties in litigation and what limitations, if any, are imposed upon such interviews by the Rules of Professional Conduct. The applicable Rules are:

RPC 4.2 Communication with Person Represented by Counsel

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.

RPC 4.3 Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

The inquiry may well have been prompted by uncertainty generated by the holding of the Appellate Division in State v. CIBA-GEIGY Corp., 247 N.J. Super 314 (1991) which dealt with ex parte interviews of current employees of a corporate litigant. Although it appears that the Supreme Court granted a motion for leave to appeal from that decision, we are advised that the matter was thereafter dismissed.

A careful review of the Appellate Division decision leads us to conclude that its rationale applies with equal force to the conduct of ex parte interviews of former employees of a corporate litigant.

Indeed, in its analysis of the scope of protection afforded by RPC 4.2, the Court rejected the polar extremes - the "plain language" construction which would limit the definition of the word "party" to the corporate entity named in the pleadings and its antithesis - the view which would prohibit all ex parte interviews including those of former employees, as enunciated by Judge Politan in Public Service Electric and Gas Co. v. Associated Electric & Gas Ins. Services, Ltd., 745 F. Supp. 1037, 1039-42 (D.N.J. 1990).

Having rejected the "bright line" views, the Appellate Division expressly adopted the position taken by the New York Court of Appeals in Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 496, n.3, 558 N.E.2d 1030, 1033, n.3 (1990) quoting therefrom in haec verba:

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

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. [Id. at 498, 558 N.E.2d at 1035].

Immediately following the foregoing excerpts from Niesig v. Team I the Appellate Division said:

We are not the Supreme Court which can amend or clarify its rule, and we fully recognize that the broader we define the word "party" the more we narrow pretrial discovery of facts. [n.9]. However, we know no better way than the New York Court of Appeals to balance the purpose of the Rule with the realities and practicalities of conducting litigation. That balance may at first, as in New York, be somewhat difficult to apply. It may even deter some ex parte civil discovery, there is no great social or policy sacrifice; it will promote other types of discovery, such as by deposition upon notice to the adversary.