Monday, July 23, 2007

Wisconsin Weighs In

A recent ethics opinion from Wisconsin addresses the recurring issue under Rule 4.2 of contacting employees of an organization without permission of the organization's counsel. The opinion concludes that such contacts are allowed with respect to current employees except those that "direct, supervise or regularly consult with the organization's lawyer concerning the matter, or whose act or omission in connection with the matter may be imputed to the prganization for purposes of civil or criminal liability." Former employees are fair game. In any contact, the lawyer must advise of her role in the matter and avoid discussion of privileged matters.

The question that occurs to me is this: how does a lawyer know who in an entity "directs, supervises or regularly consults" with counsel? The lawyer can ask but the employee may not be fully capable of responded on the fine legal points. The comments to the ABA Model Rules suggest, in uncertain circumstances, the advisability of seeking a court order. That does not help in a pre-litigation context. The Model Rule comment 8 provides that actual knowledge that the witness is represented is required to prove an ethics violation, but states that a lawyer cannot evade knowledge by "closing eyes to the obvious."(Mike Frisch)

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