Ex Parte Communication with Former Employees
John A. Schena, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Having practiced the majority of my career in California courts, I have grown accustom to my bi-weekly ex parte regarding any number of topics (but most often these days the order-shortening-time request so that a motion may be heard within the next calendar year). Only recently have I come to truly appreciate the stigma the term “ex parte” carries with many of our out-of-state brethren after nonchalantly mentioning – “I’ll go ex parte and clear that issue right up” – only to receive a “you can’t do that,” in response. Litigation would come to a grinding halt if we had to operate on the normal course in California.
That said, even we California litigators are aware of the true ex parte faux pas: you cannot have ex parte contact with a party represented by counsel absent consent from counsel, as codified in Rule 2-100 of the California Rules of Professional Conduct and Rule 4.2 of the Model Rules of Professional Conduct. The rule is simple to apply and adhere to for individuals, but less so for entities where it may be unclear exactly who constitutes a represented party or client. The California Rule attempts to eliminate as much grey area as possible by defining a “party” to include “[a]n officer, director, or managing agent” of an entity, or “[a]n association member or an employee of an association, corporation or partnership, if the subject of the of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” CRPC Rule 2-100(B). But, even with that mouthful of a definition, or perhaps because of, a grey area still exists where counsel must carefully operate if at all.
With respect to current employees, ex parte communication is never permissible with present officers, directors, or managing agents, or with those individuals who may through communication bind the entity or otherwise make an admission on behalf of the entity for the purpose of establishing liability (these individuals are often referred to as “control group” members). See, e.g., Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 140. California has adopted the so-called expanded control group test discussed at length in Upjohn Co. v. U.S. (1981) 449 U.S. 383, 390, protecting communications between even lower-level employees who receive attorney communications within the scope of their duties. Counsel who contacts an opposing party’s current employees on an ex parte basis does so at their own peril of violating the Rules of Professional Conduct and being subject to monetary sanction, disqualification, or terminating sanction. There may be an appropriate and permissible situation to do so, but those are so few and far between that normally the best course of action to limit any potential ethical violation is to advise opposing counsel of the intention to interview current employees.
However, Rule 2-100 does not address communications with former employees. Courts have explicitly refused to apply the prohibition of ex parte contact to former employees, finding the Rule has no application once employment terminates. See Continental Ins. Co. v. Sup. Ct. (1995) 32 Cal.App.4th 94, 118. (“CPRC 2-100 is not intended to apply to communications with persons no longer holding office or employed by an adverse corporate party… Therefore, it is not a violation or ground for disqualification to interview unrepresented former employees of a corporation without the knowledge or consent of the attorneys representing the corporation.”) The same lack of restriction is true even for former “control group” members, as former members cannot currently bind an entity or constitute an admission for the purposes of establishing liability. See, e.g., Souza v. Pratico (1966) 245 Cal.App.2d 651, 664 (“To be admissible against the principal, statements of an agent must have been made during the continuance of the agency…”). The dichotomy in the Rule between the treatment of former and current employees has been referred to as a “bright line test” designed to permit an attorney “to determine beforehand whether particular conduct is permissible.” Nalian Truck Lines, Inc. v. Nakano Warehouse & Transp. Corp. (1992) 6 Cal.App.4th 1256, 1264. Simply put, it is not an ethical violation in and of itself for counsel to communicate with unrepresented former employees, control group or otherwise, without the knowledge or consent of opposing counsel.
Of course, there is a limit to the rule permitting contact with former employees. Counsel should not inquire about attorney-client privileged information that may have previously been disclosed during employment as the protection remains with and for the true client – the entity. Continental, 32 Cal.App.4th at 117. Counsel should not intentionally attempt to invade the privilege, especially in an ex parte setting whereby the party holding the privilege is not present to ensure it is upheld and the cat remains in the bag. But, the attorney-client privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn, 449 U.S. at 395. Counsel is within its rights to inquire with regard to the relevant underlying facts in the case even if the facts are discussed with an attorney. State Farm Fire & Ca. Co. v. Sup. Ct. (1997) 54 Cal.App.4th 625, 652. Ex parte interviews with former employees regarding the underlying facts are fair game and often the source of valuable information. In the event that counsel is seeking to undertake permissible ex parte communication, it is best to advise the witness in writing that counsel will not inquire into matters subject of the attorney-client privilege and that such information should not be volunteered.
It is not only important to understand the application of Rule 2-100 when attempting to communicate with an opposing party’s former employees, but it is just as important when on the other side of the equation. California Rules of Professional Conduct Rule 5-310(A) prohibits an attorney, whether explicitly or implicitly, from instructing potential witnesses to make themselves unavailable. Likewise, Rule 5-220 generally prohibits the “suppression” of evidence. Model Rules of Professional Conduct Rule 3.4(f) prohibits an attorney from requesting any non-client refrain from voluntarily providing relevant information absent an employment or agency relationship. Here, too, one may find grey area, but the grey area is not where you want to be when on the wrong side of a motion for sanctions.
There are options, however, short of telling a former employee to run for the hills or spend the summer in Europe. Entities are allowed to instruct their current employees to contact their counsel before speaking with opposing counsel and may in fact send a warning letter to opposing counsel stating their employees are represented. Snider v. Sup. Ct. (2003) 113 Cal.App.4th, 1187, 1212. For former employees, if there is good cause such as the potential for disclosure of attorney-client communications, an entity may proactively move for a protective order prohibiting ex parte communication. Id. at 1214-1215. Putting potential witnesses on notice in writing that they may be contacted by opposing counsel and that the attorney-client privilege protects prior communications is permissible and may led to the individuals contacting their former employer before opposing counsel. Any such communication should be carefully worded to prevent any implication that would run afoul of Rule 5-220.