In Camden v. State of Maryland, 910F. Supp. 1115 (D. Md. 1996), the United States District Court for the District of Maryland held that a lawyer may not engage in ex parte communications with a former employee of an adverse party when the lawyer knew or should have known that the former employee received confidential information from that party.
In Camden, the plaintiff sued her former employer, Bowie State University, alleging that. Bowie State had discriminated against her on the bases of race and age. When Camden first complained to Bowie State, Richard Redmond, a special assistant to the president of Bowie State for affirmative action programs, was assigned to investigate the claim. Camden and Bowie State were unable to resolve their differences informally. Camden filed a complaint with the EEOC. Redmond prepared and signed Bowie State's response to the complaint. In addition, Redmond consulted with Bowie State's attorneys and officials regarding the case, and he was actively involved in the sending and receiving of confidential communications.
After the EEOC refused to issue a complaint on Camden's behalf and issued a right to sue letter, Camden filed suit against Bowie State. At about that same time, Redmond left his Bowie State job. During Camden's discovery, Bowie State identified Redmond in an answer to an interrogatory as someone having knowledge of material facts. Redmond, however, was not deposed. Instead, Redmond signed an affidavit, supporting a motion filed by Camden, in which he revealed discriminatory statements about Camden allegedly made by Bowie State officials. Redmond's affidavit also indicated that he possessed certain Bowie State documents pertinent to the Camden case.
Upon receiving a copy of Redmond's affidavit, Bowie State's attorneys immediately contacted Camden's counsel to object to the ex parte contact with him. In addition, they demanded:
- that they be present during Camden's attorneys future contacts with Redmond, or that such contacts be subject to appropriate court order; and
- that they be given a copy of all notes based on conversations with Redmond, as well as documents Redmond may have provided that he was not authorized to have. (At least one of those documents was marked "Confidential" and included specific references to communications with Bowie State attorneys.)
In response, Camden's attorneys refused to refrain from ex parte contact with Redmond, refused to seek a clarifying court order, and refused to supply copies of notes related to their communications with Redmond. Camden's attorneys did agree, however, to turn over copies of documents that Redmond had provided to them. Bowie State then filed a motion to strike Redmond's affidavit and to disqualify Camden's attorneys.
In considering that motion, the court began its analysis by citing Rule 4.2 of the Rules of Professional Conduct, which prohibits communication "about the subject of a lawyer's representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The court concluded that, wherever the employee ranks in the organization's hierarchy, his role in implementing advice of counsel may be such that he is a candidate for inclusion in the no-contact rule.
The court next turned to the question whether Rule 4.2 should extend to former employees. The court noted that "[i]nsofar as the attorney-client privilege is concerned, subject to few exceptions, it exists in perpetuity for the individual client .... An organization has no less interest in protecting its confidences when an employee who once shared those confidences leaves the company fold." The court determined that Section 162 of the Preliminary Draft No. 10 of the Restatement of Law Governing Lawyers imposes a no-contact rule with regard to "a person whom the lawyer knows to have been extensively exposed to relevant trade secrets, confidential client information, or similar confidential information of another party interested in the matter."
The draft rule, which would be applicable to former as well as to current employees, focuses not upon the individual's status as employee, but instead to the extent of the confidences shared. Former employees whose exposure has been less than "extensive" would still be available for ex parte interviews.
In applying the language of the proposed Restatement to the facts of this case, the court concluded that:
- Camden's attorneys knew the extent of Redmond's involvement in the Camden matter;
- Camden's attorneys had shown little sensitivity to the issue of ex parte contact;
- as a result of their insensitivity, Camden's attorneys obtained confidential Bowie State documents which, at the very least, were examined by Camden's attorneys in the course of drafting motions pending before the court; and
- Bowie State had been prejudiced by the conduct of Camden's attorneys.
Accordingly, the court struck Redmond's affidavit. More significantly, the court disqualified Camden's attorneys because they had seen privileged documents, damaging to Bowie State, to which they were not entitled.
Experienced litigators have often confronted difficult discovery issues related to former employees. Camden bases its analysis on how extensive were the confidences shared with the former employee, and the discovering attorneys bear the risk of mischaracterizing the former employee's private knowledge.
*article courtesy of William W. Carrier 410/752-9721.