Opposing Counsel Contacting Your Employees: What In-House Counsel Needs To Know

Your organization recently terminated a high-ranking
employee, had a dispute with a major customer, or learned about an accident
involving one of its products. Did you know that lawyers for the fired
employee, the angry former customer, or the accident victims could be speaking
directly with your current and former employees to discuss your company’s
actions?

Following decisions by Massachusetts’ Supreme Judicial Court
in 2002 and 2003, an adversary’s lawyer now enjoys the right to communicate
with the great majority of an organization’s current employees and with all
of its former employees – without notice or permission from the organization or
its counsel. The decisions significantly change the rules of engagement for
Massachusetts litigators. Lawyers who defend Massachusetts businesses, schools,
hospitals and other organizations against litigation should understand the
changes – and help their clients adapt.

The New Rules Of Engagement

As experienced litigators know, speaking ex parte with a
witness without an opposing lawyer present can be invaluable. Such informal
conversations help a lawyer learn the strengths and weaknesses of a case. Even
more importantly, they can also allow the lawyer to influence a witness’ memory
of important facts, win a witness’ cooperation and sympathy, or even obtain a
written statement effectively committing the witness to a particular
recollection of key events. An opposing lawyer’s ability to obtain a written
statement from an important witness can make or break a case.

Until recently, an opposing lawyer’s ability to speak with
and obtain statements from an adversary’s current and former employees was
significantly limited by the lawyer’s ethical obligation to avoid ex parte
contact with a party that is represented by its own counsel.

For many years, the extent to which Rule 4.2 of the
Massachusetts Rules of Professional Conduct permitted a lawyer to have ex parte
contact with employees and former employees of an organization that was
represented by counsel was uncertain. The uncertainly deterred many lawyers
from aggressively contacting an opposing party’s employees and former employees.

In 2002 and 2003, the Massachusetts Supreme Judicial Court
changed and clarified these rules. First, in Messing, Rudavsky & Weliky,
P.C. v. President and Fellows of Harvard College, 436 Mass 347 (2002), the
SJC cleared the way for opposing lawyers to contact ex parte most of a
company’s current employees. Only three categories of employees remained off
limits: employees who have managerial responsibility regarding the matter at
issue; employees whose acts or omissions may be imputed to the corporation for
purposes of liability; and employees who have authority to make decisions about
the course of the litigation.

In late 2003, in Clark v. Beverly Health and
Rehabilitation Servs., Inc., 440 Mass. 270 (2003), the SJC went further,
ruling that an opposing lawyer may have ex parte contact with any former
employees.

As a result of these changes, it is much more likely that
counsel for an adversary or potential adversary will make ex parte contact with
a Massachusetts company’s current and former employees. Employers can take
several steps to adapt.

Preempt:
Interview key employees and former employees early. The most
effective way to guard against contacts by a lawyer for your company’s
adversary is to beat the opposing lawyer to the punch. If a company speaks with
the employees who are likely to be important witnesses quickly after a dispute
arises, the company can find out whether the witnesses are helpful or
unhelpful, explain the company’s position in a favorable light, and confirm what
the witnesses remember about key events.

Even if opposing counsel later also speaks with a witness
whom company counsel has already interviewed, the witness’ recollection is
likely to be more favorable as a result of having spoken to company counsel.

How fully to investigate a situation that may or may not
develop into litigation can be a delicate decision and will often depend on the
seriousness of the potential exposure, the likelihood that litigation will
ensue, whether an investigation is required by law and how an investigation
will be perceived internally. However, being the first to speak with key
witnesses is one important advantage of conducting a prompt and thorough
investigation.

Debrief:
Interview departing employees before they leave.If an employee who
may have knowledge of an incident that could lead to litigation is resigning or
being terminated, the employer should strongly consider interviewing the
employee before he or she leaves. The interview should be conducted by someone
not personally involved in the matter, and in serious cases should often be
conducted by counsel.

Interviewing former employees is particularly worthwhile
because departing employees are more likely to tell the company bad news. In
addition, letting an employee know that the company is trying to tackle a
potential problem may make the employees less likely to help the company’s
adversaries.

Communicate:
Encourage employees or former employees to notify the company if an attorney
contacts them. An employer may encourage its employees and former
employees to notify the company immediately if an attorney regarding a matter
involving the company contacts them. Advance notification gives an employer an
opportunity to independently investigate allegations and to impose necessary
corrective measures.

Employers can also assess whether it is necessary to hire
outside counsel. Finally, employers, with the help of counsel, can determine
whether the opposing counsel’s contact with current employees is permissible
under the Messing decision.

When a company enters into a settlement agreement or
severance agreement with a former employee, the company should consider whether
to include a provision requiring the former employee to notify the company if
the employee is contacted regarding potential claims against the company.

Notify: Explain
to employees their rights regarding contacts by attorneys

An employer may notify its employees
and departing employees that they do not have to speak with opposing counsel
unless a subpoena or summons has been secured. In addition, an employer may
inform its employees that they may request that the employer’s counsel
participate in any communications with the opposing lawyer.

Employers should
not adopt a policy prohibiting employees from speaking with opposing counsel. A
policy prohibiting employees from speaking with opposing counsel is generally
not recommended, for two reasons. Depending on the circumstances, an employee
who is disciplined or discharged for speaking with opposing counsel might have
a claim for retaliation or for violation of public policy. In addition, to the
extent counsel is involved in creating or implementing such a policy, it might
violate Rule 3.4(f) of the Massachusetts Rules of Professional Conduct, which
limits a lawyer’s ability to request that a person other than a client withhold
information from an opposing party.

Patrick Bannon is a
partner in the law firm of Gadsby Hannah LLP, where he practices in the areas
of employment and litigation. He also serves as vice-chair of the Massachusetts
Bar Association’s Labor and Employment Section Council. Bannon can be reached
at [email protected].