Re-interpreting Rule 4.2

Overhauling Rule 4.2

Today's post was inspired by "3rd Circuit Panel Reverses Lawyer's Disqualification in Employment Case," which can be found at http://www.law.com/jsp/article.jsp?id=1183453580756&pos=ataglance. The decision exonerated the plaintiff's attorney in a sexual harassment suit for potential violations of Rules 4.2. The attorney, Ms. Barnett, allegedly manipulated a secretary employed by the defendant company, and through that manipulation was able to obtain evidence relevant to her case. The Third Circuit reversed her penalty, largely pursuant to Rule 4.2's comments.

Now, the law. (I will use the text of Minnesota's rule, but it is generally the same in each state.) Minnesota Rules of Professional Conduct rule 4.2 prohibits an attorney from contacting a party whom that attorney knows is represented by counsel. In comment 7, this is limited, in an organization, to communication with an employee who consults with the organization's lawyer, or who has the power to bind the organization through his actions. That would generally include all directors, executives, and managers.

Thus, the Third Circuit's decision is in line with the rules and comments. But I'm sure that I am not the only corporate lawyer troubled by this comment. It's time that the Court reviews the purpose and spirit of Rule 4.2 and does away with comment 7.

Comment 1 states that the purpose of Rule 4.2 is to protect parties from manipulation by opposing counsel. This protection extends to organizations: "Just as an adversary's attorney may take advantage of an individual party either by extracting damaging statements from him, by dissuading him from pursuing his claim, or by negatively influencing his expectations of succeeding on the merits, the same may occur in the case of an institutional or corporate party." University Patents, Inc. v. Kligman, 737 F. Supp. 325, 327-28 (E.D.Pa. 1990). I think this is an important point, because often it is assumed that corporations and their "constituents" (employees) are presumed to have sophisticated legal knowledge. This certainly is untrue. Ms. Barnett chose to target a secretary who may not have knowledge of the potential suit or sexual harassment complaints, and her choice was deliberate. She was able to glean information from this secretary that she would not have gotten from an executive.

But Rule 4.2 goes beyond just protecting parties - it protects the attorneys as well. "The focus of MRPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party's attorney. See United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993). The right belongs to the party's attorney, not the party, and the party cannot waive the application of the no-contact rule – only the party's attorney can approve the direct contact and only the party's attorney can waive the attorney's right to be present during a communication between the attorney's client and opposing counsel. See id." State v. Miller, 600 N.W.2d 457 (Minn. 1999). In theory, then, only an attorney can waive Rule 4.2's prohibition against communication with opposing counsel. This is in direct conflict with comment 7, which would allow opposing counsel to contact an employee without first conferring with the company's counsel.

Finally, for what it's worth, the Third Circuit consistently stated that Ms. Barnett should not be disciplined because the documents relinquished by the secretary were later obtained during (legal) discovery, and thus no harm was done. The court clearly misunderstands the nature of professional discipline. The Rules of Professional Conduct do not require actual damage. Comment 1 of Rule 8.4 states, "Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct. . . ." Therefore, even if information gained through illegal means is later uncovered in normal discovery, that fact is irrelevant to professional discipline.