The Florida Bar
OPINION 78-4For purposes of the rule on communicating with a party, representation of a party commences whenever an attorney-client relationship has been established with regard to a particular matter, regardless of whether litigation has commenced. If an individual or corporation has general counsel representing that party in all legal matters, communications must be with the attorney. A corporate party's officers, directors and managing agents are "parties" for purposes of communications, but other employees of the corporation are not unless they have been directly involved in the incident or matter giving rise to the investigation or litigation.
CPR: DR 7-104(A)(1)
Opinions: 68-20, ABA Informal Opinion 1362
Mr. Richman stated the opinion of the committee:
The Committee is asked two questions concerning the application of DR 7-104(A)(1), which states:
During the course of his representation of a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The two questions are: (1) When is a party sufficiently "represented by a lawyer" to require application of DR 7-104(A)(1) so as to prohibit communication with the party and, in specific, must litigation have commenced for the DR to apply? (2) Where a potential suit or pending suit involves a corporation, who in the corporate structure is considered to be a "party" within the meaning of the DR?
The Committee's unanimous answer to the first question is that representation of a party commences whenever an attorney-client relationship has been established with regard to the matter in question, regardless of whether or not litigation has commenced. In the opinion of the majority of the Committee, in the case of even an individual or corporation that has general counsel representing the individual or corporation in all legal matters, the DR would require communication on the matter to be with the party's attorney. This, of course, presupposes that, as required by DR 7-104(A)(1), the lawyer "knows" of the existence of such representation. In the opinion of four dissenting members of the Committee, where general counsel is involved there would be no bar to communication until the particular matter has been referred to general counsel for handling by the party.
The second question presents greater difficulty with regard to where or whether to draw the line as to a corporation. The closest precedent in Florida is Opinion 68-20 [since withdrawn] which found that:
There is no impropriety in an attorney representing a party in dealings with the State Road Department contacting a member of the State Road Board or its staff in connection with the interest of his client, so long as the matter and issue have not been referred by the Board or its staff to its legal department.
The present Committee is sharply divided on this question. The majority would distinguish this prior opinion or overrule it to the extent of holding that it is too restrictive upon the right to interview certain members of a corporation when balanced against the need to properly prepare and investigate litigation, particularly where litigation has not yet commenced.
By way of example, prior to instituting litigation, plaintiff's attorney has both a need and an obligation to gather sufficient facts to determine whether to commence litigation. In addition, particularly in a large corporation, there may be numerous employees who are sufficiently removed from the management of the company and from the potentiality of themselves being a defendant in the potential or actual litigation so as to not reasonably be considered a "party" to be represented by the corporation's counsel.
Accordingly, in the opinion of the majority of the Committee, DR 7-104(A)(1) will apply to officers, directors, or managing agents of the corporation but will not apply to other employees of the corporation unless they have been directly involved in the incident or matter giving rise to the investigation or litigation. The Committee further suggests that to comply with the spirit of DR 7-104(A)(1) and in drawing the line at this point, the attorney should make no statement which would have the effect of deceiving or misleading the employee, and the attorney or the attorney's agent must specifically identify the capacity in which they are conducting the investigation.
The several dissenting members of the Committee would follow ABA Informal Opinion 1362 and the minority view of a number of ethics opinions relating to this subject as issued by other states to the effect that no employee of a corporation, no matter how remote, can be the subject of communication once litigation has commenced or once the attorney knows, as set forth in Florida Opinion 68-20 [since withdrawn], that the matter in issue is being addressed or considered by an attorney for the corporation.