According to STSW lawyer Geoff Hengerer, attorneys preparing for litigation against business entities frequently discover former employees who possess potentially relevant information. Before reaching out to these individuals without first informing opposing counsel, however, one must turn to the Maryland Rules of Professional Conduct.
Pursuant to Rule 4.4(b), there is no blanket prohibition against ex parte communications with “third persons,” which specifically includes former employees as noted in Comment 6 of Rule 4.2 and Comment 2 of Rule 4.4; see also, e.g., Chang-Williams v. United States, No. DKC 10-783, 2012 WL 253440, at *4 (D. Md. Jan. 25, 2012) (rejecting the government’s request to block all ex parte communications with former employees “merely because their acts or omissions may be imputed to the government”). Attorneys, however, do not have carte blanche when contacting these individuals. In particular, attorneys cannot seek information from a former employee “relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege.” Md. R. Prof’l Conduct 4.4(b). As discussed further below, this prohibition typically governs situations where the individual has information protected by the attorney-work-product doctrine or attorney-client privilege, but it also extends to individuals with “specific confidentiality protection[s], such as trademark, copyright, or patent law.” Md. R. Prof’l Conduct 4.4, cmt. 2.
While attorneys in Maryland can generally engage in ex parte communications with former employees, they have no such latitude when it comes to current employees of a party-opponent. In particular, Rule 4.2(a) states that “a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter.” Md. R. Prof’l Conduct 4.2(a). When the party is a corporation or other organization, the no-contact rule extends to “(1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability.” Md. R. Prof’l Conduct 4.2(b).
Even though Rule 4.4 has only been in effect since July 1, 2005, counsel should acknowledge several prior opinions addressing ex parte communications with former employees privy to protected information under Rule 4.2 that have been recently cited and discussed by the federal District Court of Maryland. See, e.g., Chang-Williams, 2012 WL 253440, at *3. In particular, the court found ethical violations when attorneys reached out to former employees who have been “extensively exposed to confidential client information.” See, e.g., Camden v. Maryland, 910 F. Supp. 1115, 1116-17 (D. Md. 1996) (noting that plaintiff’s counsel engaged in ex parte discussions with the former special assistant to the president of a state university who had consulted with high-ranking officials and attorneys regarding the case and was privy to confidential communications); Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 753 (D. Md. 1997) (finding a violation of Rule 4.2 when attorney engaged in a day-long ex parte interview with the opposing party’s former general counsel); Ag Gro Servs. Co. v. Sophia Land Co., Inc., 8 F. Supp. 2d 495, 498 (D. Md. 1997) (concluding that “Litigation Counsel deliberately undertook a course of action that he know, or should have known, would likely result in his obtaining access to information in violation of Seller’s attorney-client privilege.”). But see Davidson Supply Co. v. P.P.E., Inc., 986 F. Supp. 956, 958-59 (D. Md. 1997) (distinguishing the holding because the former employee “was not an attorney or an investigator, but was simply a marketer”).
Another consideration in preparing for these ex parte communications is how to respond should the discussion venture into protected territory. See, e.g., Ag Gro Servs., 8 F. Supp. 2d at 499 (noting that during the “course of his interview, it became absolutely clear that Seller’s Former Counsel was improperly disclosing client confidences”). Rule 4.4(b) addresses this situation and instructs that upon receiving any privileged information, the attorney “shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.” Md. R. Prof’l Conduct 4.4(b).
While a procedural safeguard is now in place, attorneys should thoroughly assess the potential for the former employee to possess protected information before initiating the communications. Prudence is called for because courts have imposed significant sanctions for improper ex parte contacts, including disqualification. See, e.g., Camden, 910 F. Supp. at 1116 (granting motion to strike witness testimony and to disqualify plaintiff’s counsel); Zachair, 965 F. Supp. at 743 (granting motion to disqualify trial counsel and suppress wrongfully obtained material); Ag Gro Servs., 8 F. Supp. 2d at 499 (granting motion to disqualify “Litigation Counsel, and any attorney who has received privileged information from Litigation Counsel”).
Without more from the Rules or courts, Maryland attorneys, especially those also licensed in the District of Columbia Court of Appeals, should consider implementing practical guidance from two D.C. Bar ethics opinions before engaging in any substantive communications with former employees of party-opponents. See, e.g., D.C. Bar Legal Ethics Comm. Ops. 287 (Oct. 20, 1998), 129 (Sept. 20, 1983). In particular, Opinions 129 and 287 instruct that it is permissible to approach a former employee without informing the opposing party as long as certain safeguards are followed by the questioning attorney, to include:
• Confirming that the former employee no longer has the authority to bind the organization;
• Informing the former employee (preferably in writing) of the lawyer’s identity and the fact that the lawyer represents a party in actual or potential litigation that is adverse to the individual’s former employer; and • Avoid soliciting information that the attorney reasonably knows or should know is protected and/or privileged.
In short, attorneys should cautiously approach ex parte communications with former employees of party-opponents and thoroughly investigate the circumstances beforehand – but need not be discouraged from them altogether.
Please feel free to contact Mr. Hengerer at 443-909-7490 or firstname.lastname@example.org for more information.