How Not to Lose the Winning Witness: Ethical Considerations in Working with Employee and Former Employee Witnesses
Every good trial lawyer knows that the right witness can make or break your case. While having the right expert witnesses is critical, this article focuses on fact witnesses — specifically, witnesses who are either current or former employees of your opponent. There are numerous traps for the unwary in dealing with such witnesses. The consequences of a misstep range from losing the ability to call the witness at trial to being disqualified from representing your own client. With the stakes so high, knowing the limitations before you begin communicating with an employee witness is critical.
Can You Talk to Employee Witnesses At All?
First and foremost, you must determine whether your witness is a current or former employee. Under the Florida Rule of Professional Conduct 4-4.2, a lawyer “must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” The comments to the rule clarify that in dealing with an organizational party, a lawyer may not communicate with three classes of employees of a represented organization: 1) “persons having a managerial responsibility on behalf of the organization”; 2) “any other person whose acts or omission in connection with that matter may be imputed to the organization”; or 3) a person “whose statement may constitute an admission on the part of the organization.”[1] However, while the comments identify the class of current employees who are off-limits, the rule also provides, “Consent of the organization’s lawyer is not required for communication with a former constituent.”[2]
This language tracks the Florida Supreme Court’s opinion in H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997), in which the court held “that Florida Rule of Professional Conduct 4-4.2…does not prohibit a claimant’s attorney from engaging in ex parte communications with former employees of a defendant-employer.”[3] In that case, the court looked to F.S. §90.803(18)(e), which provides that a statement by an agent of a party is only a binding admission if it concerns a matter within the scope of the agency and is made during the existence of the agency or employment relationship.[4] The court also examined the ABA Committee’s interpretation of Model Rule 4.2, which provided that the rule “does not prohibit contacts with former officers and employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed.”[5] Thus, because former employees can no longer bind an employer, communication with them is not prohibited.
As with most things in law, there are important caveats to this general holding. First, if the lawyer knows that the former employee is represented by counsel, ex parte communications are prohibited under the rule. Second, the lawyer must not attempt to obtain privileged information from the former employee.[6] A lawyer who obtains privileged information from a former employee risks disqualification of himself and the witness.[7]
The harder question is whether you can communicate with current employees of your adversary. Obviously, under the comments to the rule, you can eliminate speaking to witnesses with managerial responsibility or those whose acts or omissions led to the lawsuit. But how can you safely determine whether a current employee’s statement could constitute an admission? Wouldn’t any helpful information necessarily relate to matters within the scope of their agency? The answer is: not necessarily. The caselaw provides some guidance.
In Lee Memorial Health System v. Smith, 56 So. 3d 808 (Fla. 2d DCA 2011), the appellate court was called on to decide whether a plaintiff’s attorney in a medical malpractice action could speak with his client’s treating physicians even though they were also employees of the defendant hospital. Consistent with Rule 4-4.2, the court looked to see if the treating physicians fell within any of the prohibited categories of employees.[8] However, the defendant-employer offered no evidence that 1) any of the child’s treating physicians supervised, directed, or consulted with the defendant’s lawyers concerning the lawsuit; 2) they had the authority to obligate the organization with respect to the lawsuit; or 3) the treating physicians’ acts or omissions could in any way be imputed to the hospital in connection with the lawsuit.[9] In addition, there was no evidence that these physicians were “represented by counsel concerning the matter to which the communication relates.”[10] This holding is consistent with an additional comment to Rule 4-4.2, to wit, the “rule does not prohibit communication with a represented person, or an employee or agent of such person, concerning matters outside the representation.”
Unless it is crystal clear that your current employee witness will not be speaking on matters in connection with the lawsuit, the safest course of action is likely to be that followed in NAACP v. Fla. Department of Corrections, 122 F. Supp. 2d 1335, 1341-42 (M.D. Fla. 2000). In that case, brought against the Department of Corrections for discretionary practices, the plaintiff sought leave to interview current rank-and-file employees and former employees of the defendant without the presence of defense counsel. The court balanced the competing needs of the parties and formulated a plan to allow approximately 60 interviews of current employees under specially tailored circumstances.[11] Some of the limitations on the interviews were that plaintiff’s counsel were not allowed to interview managerial employees and had to advise current employees not to disclose privileged information.[12] Moreover, none of the information or evidence gathered could be used as binding admissions of a party opponent.[13] Although this procedure for obtaining interviews was time-consuming, it ensured that counsel would be able to conduct the necessary informal discovery without risking later disqualification or being barred from using the witness testimony at trial.
It is also worth noting that the comment to Rule 4-4.2 prohibits contact with represented parties even if that person initiates the contact. “A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by th[e] rule.”[14] In short: beware the whistleblower witness who is still employed by your adversary.
Under What Circumstances Can You Compensate A Witness?
Once you decide you are ethically permitted to speak with a given witness, the question of compensation may arise. Many attorneys believe that you can never compensate a fact witness except for the amounts specifically set forth in F.S. §92.142, which calls for reimbursement of 6¢ per mile for distance traveled to and from the courts, and $5 per day for actual attendance at trial. However, the Rules of Professional Conduct make clear that the scope of payment is broader. Rule 4-3.4 provides, in pertinent part:
A lawyer must not:
(b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to a witness for time spent preparing for, attending, or testifying at proceedings.[15]
The Florida Supreme Court has explained that the rule strikes a balance between the evil of inducing a witness to color his testimony and recognizing that witness time is valuable and can be compensated as incentive for carrying out their duty to assist in the truth-seeking function of trial.[16] In Trial Practices Inc. v. Hahn Loeser & Parks, LLP, 260 So. 3d 167, 172 (Fla. 2018), the defendant needed the assistance and testimony of his attorneys and accountants to combat allegations of tax fraud. The question was whether these professional fact witnesses could be compensated for time spent assisting with the case and discovery preparation. The court held that a fact witness may be compensated for any such assistance, provided it directly relates to the witness “preparing for, attending, or testifying at proceedings.”[17] For example, a fact witness could be compensated for filling out interrogatories and executing affidavits, but not for time spent reviewing motions for sanctions or motions in limine.[18] Thus, lawyers are permitted to reasonably compensate fact witness, but only to the extent that their time is spent preparing for or testifying at proceedings.
Because Rule 4-3.4(b) allows non-contingent compensation for experts, lawyers may be tempted to try to skirt the rule by reclassifying fact witnesses as consultants. This is a pathway to a Bar disciplinary proceeding, as seen in The Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003). There, one brother needed information about his family’s business practices after the other brother refused to provide information in bitter estate litigation.[19] That brother located a witness who was a former employee of the family business.[20] With assistance of his Florida attorney, the brother entered an agreement to pay the witness a consulting fee of $50,000 for the first 50 hours of her assistance, a “bonus” of between $100,000 and $1 million depending on the usefulness of her information, and to pay her $500 per hour for time spent over 50 hours.[21] Although she was not initially expected to testify at trial, both sides ended up listing her on their witness lists. The court was unsympathetic to the attorney’s claim that the witness was not initially expected to testify, saying: “paying an individual who has personal knowledge of the facts is to pay a witness, whether or not that person is expected to testify.”[22] Rule 4-3.4 is not limited to testifying witnesses.[23] Because witnesses must not be tempted to color their testimony, the lawyer received a 90-day suspension and one year of probation.[24]
Can I Use Company Documents Given to Me By a Fact Witness?
Another sticky issue arises when a witness has company documents. Of course, if those documents support your case, the temptation to accept and review them is huge. The consequences of doing so, however, could be dire.
If a disclosed document is protected by attorney-client or work product privileges, the best-case scenario is being prohibited from using the document. The worst-case scenario is disqualification. The case of Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010), is a cautionary tale. There, the mother in a paternity case illegally obtained the father’s flash drive containing thousands of pages of documents and communications.[25] Among those documents were attorney-client communications, work product and mental impressions of the father’s attorneys, and confidential medical, financial, and business information.[26]
Despite receiving the USB drive “under very, very suspicious circumstances,” the [mother’s law firm] spent in excess of 100 hours reviewing its contents “although it was apparent within moments of inspection that it belonged to the father and contained attorney/client communications with the father’s counsel…, as well as a complete history and chronology of strategy, work product, and confidential communications spanning the near decade-long period of this litigation.”[27]
The appellate court upheld the disqualification of the mother’s counsel.[28] It also provided guidance for other lawyers in the future:
[W]hen an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his [or her] client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue.[29]
This rule would logically extend to include documents wrongfully obtained by non-party witnesses. Moreover, the rule is broad enough to include non-privileged documents, provided they were wrongfully obtained. Therefore, before accepting documents from an employee-witness, the lawyer should carefully determine whether the employee signed a confidentiality agreement with the employer, whether the employee was required to return or destroy any materials in their possession at the time they left employment, and the circumstances under which the employee came to have the documents. Of course, even if it appears that the employee rightfully possesses the documents, the lawyer still cannot retain, review, or use privileged information. As to non-privileged documents, and especially in highly contentious cases, the safest course might be to ask the witness to give you a description of the documents so that you can request them in discovery. This method will ensure you obtain the documents through the proper channels, and you will not have to waste time and client resources defending against motions for disqualification or prohibiting the use of otherwise admissible materials.
What Are the Consequences of Getting It Wrong?
As one legal scholar has noted, “one inappropriate step by counsel in contacting a litigant’s former employees may result in sanctions such as disqualification of counsel, exclusion of evidence obtained from former employees, monetary penalties, and initiation of disciplinary action.”[30] For example, the 11th Circuit concluded that barring a party from using the testimony of paid witnesses was an appropriate penalty for violating Rule 4-3.4(b).[31] Of course, the potential effect on one’s client of losing a key witness because of crossing an ethical line could be disastrous.
Thankfully, there is a good faith component that must be considered whenever an attorney is accused of violating an ethical rule. In Allstate Ins. Co. v. Bowne, 817 So. 2d 994, 997 (Fla. 4th DCA 2002), the court explained that “the good faith of the lawyer taking the statement from the witness is significant as to any possible disqualification under DR 4-4.2 — particularly in the absence of a showing of disclosure of confidential information that would not ordinarily be subject to disclosure.” In that case, an attorney met ex parte with a former Allstate Insurance employee, who was employed by an Allstate subsidiary.[32] Allstate claimed that the former employee was a current employee who was merely leased to the subsidiary.[33] However, the witness’s business card showed he was employed by the subsidiary and the subsidiary had a different principal place of business listed with the secretary of state.[34] The attorney also researched the ethical rules and caselaw and obtained an advisory opinion from The Florida Bar Ethics Hotline that contacting the former employee was permissible.[35] The court found the proper inquiry was whether counsel “had a reasonable basis to believe that the witness was now employed by a different entity than the party sued.”[36] For a violation of Rule 4-4.2, remedies such as barring acquisition of evidence during discovery or barring use of improper communications at trial generally are more appropriate than disqualification of counsel. That being said, even if counsel is not disqualified, barring acquisition or use of critical evidence is still an outcome with harsh consequences for the client.
Conclusion
Lawyers work hard to locate witnesses and obtain critical testimony on behalf of their clients. Common sense dictates that when one’s opponent is a business organization, the witnesses who will know “where the bodies are buried” will be current and former employees of that business. Before speaking with, compensating, or taking documents from an employee or former-employee witness, however, counsel must ensure that no ethical lines are crossed. To do otherwise is to allow zealous advocacy to steer you toward a perilous cliff where the results range from the barring of testimony and otherwise admissible documents (a result disastrous to your client) to disqualification (a result disastrous to you).
[1] H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541, 545-46 (Fla. 1997) (citing ABA Comm. on Ethics and Professional Responsibility Formal Op. 95-396 at 1 (1995)). The comments to Florida Rule of Professional Conduct 4-4.2 provide, “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”
[2] Comments to Rul. Reg. Fla. Bar 4-4.2.
[3] H.B.A. Management, 693 So. 2d at 546.
[4] Id. at 545.
[5] Id. at 545 (quoting ABA Comm. on Ethics and Professional Responsibility Formal Op. 95-396 at 7 n. 47 (1995) (emphasis supplied)).
[6] See H.B.A. Mgmt., 693 So. 2d at 543-44; Nat’l Assoc. for Advancement of Colored People v. Fla. Dep’t of Corr., 122 F. Supp. 2d 1335, 1340-41 (M.D. Fla. 2000).
[7] Compare Carnival Corp. v. Romero, 710 So. 2d 690 (Fla. 5th DCA 1998) (disqualification not warranted where former employees had access to confidential or privileged information regarding that lawsuit) with Rentclub Inc. v. Transamerica Rental Financial Corp., 811 F. Supp. 651 (M.D. Fla. 1992) (counsel disqualified for communicating — and paying — former employee fact witness who disclosed confidential information of former employer).
[8] Lee Memorial Health Sys., 56 So. 3d at 812.
[9] Id.
[10] Id.
[11] NAACP, 122 F. Supp. 2d at 1335.
[12] Id. at 1343-44.
[13] Id. at 1344.
[14] Rul. Reg. Fla. Bar 4-4.2.
[15] Emphasis added.
[16] Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 260 So. 3d 167, 171 (Fla. 2018).
[17] Id. at 172.
[18] Id. at 173.
[19] Wohl, 842 So. 2d at 812.
[20] Id. at 812-13.
[21] Id. at 813.
[22] Id. at 814.
[23] Id. at 815.
[24] Id. at 816-17.
[25] Castellano, 27 So. 3d at 135-36.
[26] Id. at 136.
[27] Id.
[28] Id. at 137.
[29] Id.
[30] Susan J. Becker, Discovery of Information and Documents from a Litigant’s Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868, 872 (2003).
[31] See Golden Door Jewelry Creations, Inc v. Lloyds Underwriters Non-Marine Ass’n, 117 F.3d 1328, 1335 n.2 (11th Cir. 1997).
[32] Allstate Ins. Co. v. Bowne, 817 So. 2d at 996.
[33] Id.
[34] Id.
[35] Id. at 996-97.
[36] Id. at 997.
Jessie Harrell is board certified by The Florida Bar in appellate practice. She is the founding member of The Harrell Firm in Jacksonville and provides trial support and appellate services throughout Florida. Harrell obtained her law degree, with high honors, from the University of Florida College of Law in 2001.
This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.
