Opinion 2003-5
(May 2003)

Your inquiry pertains to the ethical propriety of contacting and interviewing currently employed, non-managerial employees of a represented corporate party and what, if any, limitations are placed thereon by the interplay between Rule of Professional Conduct 4.2 and Pa. Rule of Evidence 803 (25) (D).

Rule of Professional Conduct 4.2 prohibits contact by an attorney with a party who is represented by another lawyer, unless the attorney has the consent of the other lawyer or is authorized by law to do so. That does not appear to answer the inquiry. However, the Comment to R.P.C. 4.2 states, in part, "In the case of an organization, this Rule prohibits communications with persons -- whose statements may constitute an admission on the part of the organization." This comment arguably broadens 4.2. If adopted in Pennsylvania, the comment would make it unethical to communicate with anyone who could make a "party admission."

Pa. R.E. 803 (25) (D) permits the use of statements of an opposing party's employee or agent as an admission and as an exception to hearsay, if made during the existence of the relationship and concerning a matter within the scope of the agency or employment. Thus, the inquiry is answered if Pennsylvania incorporates the quoted portion into Rule 4.2.

Guidance can be obtained by a review of the decision in McCarthy v. Southeastern Pennsylvania Transportation Authority, 2001 Pa. Super. 106, 772 A.2d 987 (2001). In that decision, the court cautioned that the comments to the Rules of Professional Conduct do not add obligations to the rules, but merely provide guidance for interpretation of the body of the rule. The court then refused to transfer the evidentiary definition of an "admission" as described in Pa.R.E. 803 (25) (D) to Rule 4.2. Instead, the Court interpreted the comment to R.P.C. 4.2 as "instructing counsel to determine, before having ex parte contact with an employee, the position and nature of employment of that employee in regard to the possibility that a statement given by that employee and potentially admitted at trial could impute liability onto their employer." 772 A.2d at 993.

The Court in McCarthy held that the evidence did not support a finding that the employees of SEPTA with whom counsel had ex parte communication had "managerial responsibility," and thus found no ethical violations.

Thus, in the event that an attorney engages in such ex parte contact with anyone found to have authority to make a statement which could impute liability to the company, such contact would result in a violation of R.P.C. 4.2.

Therefore, while the comments to R.P.C. 4.2 state that the proscriptions of the rule pertain to employees with managerial responsibilities, to employees whose acts or omissions may impute liability to the organization, and to employees whose statements may constitute an admission on the part of the organization, the Pennsylvania Supreme Court has not so ruled. Although Pa. R.E.803 (25) (D) defines admissions from a broader category of employee or agent, beyond merely managerial persons, the McCarthy court declined to import the definition of admission described in Pa. R. E. 803 (25)(D) to R.P.C. 4.2. 772 A.2d at 993.

Therefore, contact with a non-managerial employee or agent of a represented person or organization would not be a per se violation of R.P.C. 4.2., even if such person's statement were a "party admission." The difficulty in application is determining who is an employee whose statement can impute liability to the employer. However, the fact that the statement is sought to be used as an admission against the employer, in and of itself, does not automatically result in a determination that R.P.C. 4.2 has been violated.

The Committee would like to point out however, that The United States District Court for the Eastern District of Pennsylvania, has accepted, for purposes of deciding a violation of R.P.C. 4.2, the following definition of admission contained in F.R.E. 801(d)(2)(D), "a statement by the party's agent or servant concerning a matter within the scope of agency or employment, made during the existence of the relationship." Belote v. Maritrans Operating Partners, 1998 U.S. Dist. Lexis 3571 (E.D.Pa. 1998). Thus two standards are present, one for state court practice, the other for federal practice. Practitioners should note the difference and act accordingly.

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.