Opinion 2001-10
(November 2001)

The inquirer represents an employer in a workers' compensation matter. Counsel has represented the injured worker/claimant since 1995, and a third-party administrator (TPA) had paid the worker's benefits on behalf of his self-insured employer. Defense counsel has represented the employer/TPA since April 2000.

In April 2001, the TPA arranged for surveillance to be conducted upon the claimant; defense counsel was not aware of the surveillance at the time it was ordered. As part of the surveillance, an investigator transported the claimant to and from an independent medical examination (IME). During the trip to the IME, the claimant spoke with the investigator and allegedly disclosed information or made a statement contrary to his claim of ongoing disability. In May 2001, defense counsel received a copy of the IME report from the claims adjuster, who requested that counsel file a termination petition, which was done. In June 2001, defense counsel received copies of the surveillance reports from the adjuster. This was defense counsel's first knowledge of the surveillance, and the reports were turned over to claimant's counsel five days later.

Defense counsel intends to offer the surveillance into evidence and use it in support of his client's termination petition. Claimant's counsel has stated that she will object to the evidence "obtained by your client's surveillance witnesses in light of their unscrupulous and perhaps illegal tactics which at a minimum go against the intent and spirit of the Pennsylvania Workers' Compensation Act." Counsel further claimed that the use of the evidence would violate Rule 5.3(c)(1) of the Rules of Professional Conduct.

Defense counsel has requested an opinion whether the introduction and use of the surveillance evidence would violate any of the Rules of Professional Conduct. Although the inquirer focused on the propriety of counsel's attempt to introduce the surveillance into evidence, the facts raise the following questions:

1. Is the surveillance an impermissible communication between counsel and a represented party?
2.  Is counsel's use of the surveillance a "ratification" of the conduct of the investigator?
3. Is the attempted proffer of the surveillance a violation of the Rules of Professional Conduct?

Albeit with the caveats expressed in this opinion, it is this Committee's opinion that these facts do not violate the Rules of Professional Conduct. The Committee notes, however, that this opinion does not attempt to interpret the provisions of the Pennsylvania Workers' Compensation Act nor does it address whether a Workers' Compensation Judge may admit the information into evidence.

It is clear that the evidence to which claimant's counsel objects, and which is central to this inquiry, is the conduct of the investigator in having direct contact with a represented party, at the direction of the TPA. Under Rule 4.2, "a lawyer shall not communicate about the subject of the 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." It is undisputed that claimant's counsel did not grant such permission.

Rule 4.2 prohibits defense counsel from speaking with the injured worker, and also prohibits those persons working on his behalf from doing so. In addition, counsel cannot use others to undertake conduct that, if done by counsel, would contravene the Rules of Professional Conduct.

According to the inquirer, the TPA, which also arranged for the involvement of the investigator, scheduled the medical examination. Thus, the investigator, although working for the same entity as counsel, was not in contact with counsel or otherwise privy to counsel's relationship with the TPA.

The analysis of this inquiry must also address Rule of Professional Conduct 5.3 ("Responsibilities Regarding Nonlawyer Assistants"), which states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved. . .

Under both Rule 4.2 and Rule 5.3, the issue is whether the investigator can be deemed to be "associated with" defense counsel. Of guidance is both the title of Rule 5.3, "Responsibilities Regarding Nonlawyer Assistants," and the "Comment" to the Rule, which states:

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment . . . A lawyer have direct supervisory authority over the nonlawyer should make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.

The investigator in this case was not employed by counsel, but was instead employed by the TPA, and his existence was unknown to counsel at the time of the disputed conduct. Thus, there is no basis to impute to the lawyer a violation of the Rules by the conduct of someone wholly unrelated to him.

A different conclusion may result, however, if the TPA had advised counsel of its retention of the investigator, and the assignment given to him, or if counsel either had actual knowledge, or had reason to believe from prior dealings with the TPA that the conduct was occurring. In that situation, counsel would be ratifying the investigator's conduct by virtue of his use of the information obtained. In that regard, , counsel should be aware of Rule 1.2(d) ("Scope of Representation"), which states:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Finally, the attempted proffer of the surveillance evidence does not constitute a ratification of the conduct by counsel. Of note is Rule 3.3 ("Candor Toward the Tribunal"), which precludes an attorney from introducing evidence that is "untrustworthy," but requires candor to the tribunal. In this situation, defense counsel was candid to the Judge and counsel by disclosing the facts surrounding the evidence as soon as he knew them.

Lastly, this Committee cannot address the admissibility of the evidence, which is within the sole province of the Workers' Compensation Judge. As with a prosecutor in a criminal case who uses evidence that may be "tainted," the final determination concerning admissibility is within the sole discretion of the judge, who considers the law when making a ruling.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.