Quick Hits (6/15/05)

When a lawyer communicates directly with the employee of an opposing party in litigation, and knows that the opposing party is represented by counsel, sparks fly.  There are some somewhat complicated rules about which opposing party employees you can or can't talk to, and what you can and can't talk about.  But you cannot set up that employee as your ongoing, continuing spy, or manipulate your "mole" to obtain privileged and confidential information from the opponent, says this court.  And who would disagree with that holding?  It's one of those stories that prompts the eternal question, "what were they thinking?"    . . . .    A client has sued his former law firm, alleging that his own lawyer had an affair with the client's wife.  The article examines corporate America's growing intolerance of extra-marital affairs by executives, and the way that personal behavior is increasingly being treated as a business ethics issue.    . . . .    Human rights lawyer Rosemary Nelson was murdered in 1999 with a car bomb.  Eversheds, a leading London firm, has been named as counsel to an investigation into the event.  Eversheds had been counsel to the Bloody Sunday inquiry.    . . . .    A survey of UK law firms reveals that many firms will admit non-lawyers to partnership, but few will seek outside investors and even fewer will opt for public ownership.  Those changes were made possibly by the Clementi reforms.    . . . .    Microsoft has donated $1 million to the Berkeley Center for Law & Technology at Boalt Hall, where the new Dean has been seeking more private funding.

Comments

[Bill Freivogel]

The 4.2 case: I thought Judge Pratter (a dear friend) went too far. I think her analysis of the employee's status was correct. The "mole" was a low-level employee, but she worked closely with the two top executives of the company (a small hotel owner). Thus, she was, in effect, a surrogate for the executives, who would be off limits in all states. Judge Pratter was also correct in condemning the fact that some of the information conveyed to the lawyer related to communications with the hotel's lawyers. That is a no-no in all states even in connection with communicating with low-level former employees. But Judge Pratter painted with a broader brush, seemingly calling into question the practice of talking to the opponent's current employees, at all. I wonder how a qui tam lawyer would fare in her court.

Her opinion also causes me to ask the following questions that have always dogged me, relating both to qui tam lawyers in particular and litigators talking to the opponent's employees generally.

What if the current or former employee you are talking to has a confidentiality agreement with the employer? Can a lawyer ethically ask the employee to violate it? Must a lawyer ask about the existence of a confidentiality agreement before asking the employee questions?

What if the common law of the state in question says that an agent has a duty of confidentiality to the principal? May a lawyer ask the employee to violate that duty? After all, what happened on the factory floor, or in the HR Dept. offices, is not generally known.

Bill Freivogel, Aon Risk Services