The Florida Bar
May 1, 1987
When the opposing party is a government agency represented by counsel, an attorney may not communicate concerning the matter with the agency's management or any other employee whose act or omission in connection with the matter may be imputed to the agency or whose statement may constitute an admission on the part of the agency, unless consent of the agency's counsel is obtained.
CPR: DR 7-104(A)(1)
Opinions: 68-20, 78-4
The inquiring attorney seeks clarification of Florida ethics opinions on the issue of communications with officials and staff of a government entity that is the opposing party in litigation or some other controversy. The opinions in question primarily are staff opinions issued subsequent to the Committee's Opinion 78-4, which addresses communications with corporate parties.
The attorney provides representation for certain individuals committed to a state hospital. This representation includes habeas corpus petitions challenging the legality of a client's continued commitment to the hospital. The hospital administrator is the named defendant. An issue, or the issue, in this litigation is the content or implementation of the hospital's habilitation plan for the client (a habilitation plan is required for any mentally retarded person committed to the hospital). Another issue in the litigation may be the medication prescribed or given to the client.
The attorney's position appears to be that although he should obtain the consent of the hospital's counsel before interviewing hospital administrators or staff who “have authority to speak and to bind the hospital administration by what they say and do,” he should not have to obtain counsel's consent to interview hospital staff who provide professional or direct care services to the patients. These employees include psychologists and social workers, who apparently are the staff responsible for developing and implementing the habilitation plans and the staff who administer medication.
DR 7-104(A), which was superseded by Rule of Professional Conduct 4-4.2 on January 1, 1987, provided:
During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in the matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
For corporate parties, the Professional Ethics Committee in Opinion 78-4 applied the disciplinary rule as follows:
(1) If a corporation has a general counsel representing it in all legal matters, the opposing lawyer must communicate with the general counsel regarding the matter in question unless he has the general counsel's prior consent to communicate with the corporate party.
(2) The restriction on communications applies for officers, directors, managing agents and “other employees [who] have been directly involved in the incident or matter giving rise to the investigation or litigation.” [Emphasis supplied.]
(3) The opposing party's attorney, in communicating with a corporate representative or employee, should make no statement that would mislead or deceive that employee, and he (or his agent) must identify the capacity in which he is conducting the investigation.
In Opinion 78-4 the committee distinguished or overruled its earlier Opinion 68-20 [since withdrawn] as being too restrictive, particularly when litigation has not yet commenced, of opposing counsel's right to interview a party's employees “who are sufficiently removed from the management of the company and from the potentiality of themselves being a defendant . . . so as to not reasonably be considered a ‘party' to be represented by the corporation's counsel.”
Opinion 68-20 [since withdrawn] found “no impropriety in an attorney representing a party in dealings with the State Road Department contacting any member of the State Road Board, or its staff in connection with the interests of his client, so long as the matter in issue has not been referred [by] the Board or its staff to its legal department.” The Committee continued: “Of course, when such matters are referred to the legal department (which of course would be true in the case of all litigation) the attorney should deal only with the legal division of the State Road Department.” [Emphasis supplied.]
The Committee cautioned that “because of the wide variation in function, composition, and jurisdiction of state and other public agencies,” its opinion was limited to the State Road Department. The Committee has never returned to the matter of communications with officials and employees of government agencies to develop any distinctions between types of agencies or entities.
The Comment RPC 4-4.2, which is essentially the same as DR 7-104(A)(1), supports the Committee's interpretation of the disciplinary rule's application to corporate parties. The Comment also indicates that the proposed rule applies to any “organization,” including government agencies. The Comment states in pertinent part:
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. [Emphasis supplied.]
It appears that other states commonly apply the corporate party rule to government agencies. It further appears that the Committee's approach to communications with corporate officials and employees is the mainstream approach. Some ethics committees and courts have stated a more liberal rule, while others are much more restrictive of communications with employees.
Opinion 78-4 is a thoughtful attempt to balance an attorney's need to properly prepare and investigate litigation and a corporate/government/organizational party's interest in avoiding opposing counsel's elicitation of damaging uncounseled statements from officials or employees whose statements would commit, bind or be deemed admissions of the entity. Such entity representatives include not only management, but also those employees whose acts or omissions are at issue in the litigation (in the words of Opinion 78-4, those employees who were “directly involved in the incident or matter”). Not included are employees who are mere witnesses, having no responsibility for the matter in question. Opposing counsel is free to interview the latter employees without the prior consent of the entity's counsel.
It appears to be the inquiring attorney's position that at least some government agencies should be treated differently from corporations. Specifically, he appears to be contending that because of the “nature” of his clients' commitment to the hospital and “the lack of alternative resources for information,” the hospital's professional and direct care staff should be accessible without the prior consent or presence of the hospital's counsel, and without resort to formal discovery, even if they are the individuals directly responsible for the matter at issue and would be treated as parties under Opinion 78-4.
In terms of the “lack of alternative resources for information,” the attorney does not seem to be in a position different from that of most attorneys representing any client against any party, whether an individual or some kind of organizational entity. Further, the attorney does not explain how or why the “nature” of his clients' commitment justifies or warrants a departure from the guidelines provided by Opinion 78-4.
Public policy arguments (based on government agencies' unique responsibility to the public at large and to the particular segments of society served by those agencies) can be made for granting attorneys greater access to employees of government-agency defendants than to employees of corporate defendants. See Note, “DR 7-104 of the Code of Professional Responsibility Applied to the Government ‘Party,”’61 Minnesota L. Rev. 1007-1034 (1977). However, that result is not suggested by Rule 4-4.2.
In conclusion, the guidelines set out in Opinion 78-4 for communications with managers and employees of corporate parties apply to government-agency parties as well. Under these guidelines, if the professional and direct care staff in question have been directly involved in the matter underlying the litigation, the inquiring attorney must obtain the consent of the hospital's counsel before the interviews them about the matter.