Understanding the Ethical Rule against Communication with a Represented Party or Person
I recommended against any ex parte communication in the above situation, absent consent from the attorney representing the witness. Since the witness, like the co-employee, had his own case against the employer, any contact with that witness may blur the line as to “the subject of representation” between these two cases.
It is understandable that lawyers who face this type of situation are concerned with a potential violation of the ethical rule barring ex parte communication with a represented party/person because such a violation could result, as an example, in the lawyer being disqualified from representing his or her own client, precluded from using the tainted evidence obtained from the communication, or exposed to State Bar discipline. Thus, it behooves a lawyer to be familiar with the ethical rule.
California Rule of Professional Conduct 2-100. Rule 2-100 is the current rule governing communication with a represented party. It provides:
For a true life story about how this rule works, consider United States v. Talao.1 The defendants (corporation and corporate officers) were involved in a civil complaint with the U.S. Department of Labor regarding an alleged failure to pay prevailing wages to several employees. One attorney represented all of the defendants. The defendants’ bookkeeper was subpoenaed to testify before a grand jury. The defendants’ attorney wanted to meet with the bookkeeper before her grand jury appearance, but the bookkeeper met with Assistant U.S. Attorney Harris, who handled the case, and advised Harris that she did not want to speak with the defendants’ attorney because the defendants were pressuring her to testify falsely. Her testimony, in part, led to an indictment against the defendants.
The defendants filed a motion to dismiss the indictment because the contact between Harris and the bookkeeper had violated California's ethical rule against ex parte contacts with represented parties as well as the defendants’ constitutional rights. The district court denied the motion but found a violation of Rule 2-100 and stated that it would refer Harris' conduct to the State Bar of California. Later, the court concluded that Harris had acted in good faith and determined not to refer the matter to the State Bar.
Finding that the government lawyer had not violated Rule 2-100, the 9th Circuit maintained: “We deem manifest that when an employee/party of a defendant corporation initiates communications with an attorney for the government for purposes of disclosing that corporate officers are attempting to suborn perjury and obstruct justice, Rule 2-100 does not bar discussions between the employee and the attorney.” The court of appeals further stated, “Once the employee makes known her desire to give truthful information about potential criminal activity she has witnessed, a clear conflict of interest exists between the employee and the corporation. Under these circumstances, corporate counsel cannot continue to represent both the employee and the corporation.”
However, caution is highly advised in similar circumstances where facts are not as blatant as in Talao to avoid violation of Rule 2-100.
Proposed Rule 4.2: Communication with a Person Represented by Counsel. Although Rule 4.2 does not become effective until it is approved by the California Supreme Court, lawyers may benefit from reviewing the proposed rule, as it provides more guidance, and the comment section addresses situations that are relevant to current practice regarding communication with a represented person. Proposed Rule 4.2 and Comment can be found on pages 75-78 of the State Bar Rules Revision Commission’s proposed rules Web page link.
Proposed Rule 4.2 is substantively similar to the current Rule 2-100, except with the inclusion of subsections (d), (e), and (f) and the change from “a party” (in Rule 2-100) to “a person” (in Rule 4.2.). This change, in my opinion, is inconsequential, as Rule 2-100 also uses the term “persons” in the “Discussion” of the rule. Comment  in proposed Rule 4.2 also notes:
Readers may track the status of approval of the proposed rules by the supreme court here.
Readers may also find helpful the following cases that address different situations where an attorney has been charged with violation of Rule 2-100 or its predecessors (Rule 7-103 and Rule 12): Triple A Machine Shop, Inc. v. State of California, 213 Cal. App. 3d 131 (1989); Jackson v. Ingersoll-Rand Co., 42 Cal. App. 4th 1163 (1996); Truitt v. Superior Court, 59 Cal. App. 4th 1183 (1997); Continental Insurance Co., et al., v. Superior Court of Los Angeles, 32 Cal. App. 4th 94 (1995); Koo v. Rubio’s Restaurant, Inc., 109 Cal. App. 4th 719 (2003); Jorgenson v. Taco Bell Corp., 50 Cal. App. 4th 1398 (1996); Nalian Truck Lines, Inc. v. Nakano Warehouse & Transportation Corp., 6 Cal. App. 4th 1256 (1992).
1 United States v. Talao, 222 F. 3d 1133 (9th Cir. 2000).