Ethics

If a lawyer asks a witness (or even a client) a question calling for information within the scope of a former employer's non-diclosure agreement, should the lawyer be subject to discipline?

"In communicating with a person who is not represented by counsel, a lawyer shall not seek to obtain privileged or other confidential information the lawyer knows or reasonably should know the person may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive." (emphasis added).  (There is corresponding language in proposed Rule 4.2, which makes clear that former employees are not represented by entity counsel.)

The comment makes clear this language is intended to cover more than privileged or work-product information:

"Paragraph (b) prohibits a lawyer, in communicating with a person who is not represented by counsel, from seeking to obtain information that the lawyer knows or reasonably should know is subject to an evidentiary or other privilege, or is otherwise protected from disclosure by a legally cognizable duty owed by the unrepresented person." (emphasis added)

Take literally the language extends to duties created by contract and thus to non-disclsure agreements, which every well-advised employer has employees sign as a condition of employment.  If the rules revision commission intends such a result, the proposed rule will impede substantially the sort of informal discovery many lawyers now take for granted.  (I assume the rule is trumped by formal discovery processes, but those usually cannot be invoked until a case is filed and the rule would make pre-filing investigation harder; it is worth noting that the rule does not include an "authorized by law" exception, though proposed rule 4.2(c)(3) does.)

This language departs from the model rules. The closes analogue is MR 4.4(a), which forbids lawyers from using "methods of obtaining evidence that violate the legal rights of" a third party.  "Legal" rights is interpreted in the Restatement [§102 cmt b] to refer to rights created by law, meaning privilege and work product, not contractual rights.  So far as I am aware, the cases provide remedies for incursion into privilege and work product but not for incursion into private contractual rights (some cases do require the return of documents a client has taken, but these are based on conversion theories not on the NDA as such).

The California rules revision commission did not recommend adoption of Rule 4.4(a), but its objection was limited to the first half of the rule (forbidding means that embarrass or harass), which the commission thought was vague, not the second.  I have found no objection to the language relevant to my concern.

It has been my understanding that the California Rules Revision Commission was supposed to harmonize California law with the Model Rules so far as the bar would tolerate such harmonization (i.e., preserving California's strong confidentiality rules and a couple of others).  There are controversial Model Rules.  This aspect of 4.4(a) is not one of them. (Indeed, California precedent is more stringent than 4.4(a) with respect to inadvertently disclosed information).  Why, then, has the RRC deviated from its harmonization goal with respect to this rule?  I do not know the answer to that question.

I am against the proposed modification, and I hope the CA Supreme Court does not endorse it.  For one thing, there is no general prohibition on lawyers having confidential or trade secret information. It happens all the time.  Generally a protective order is in place, but similar protection could be afforded by a rule punishing lawyers for misusing information obtained through informal means.  And the proposed rule favors some members of the bar (and their clients) over others.  In general, plaintiffs' lawyers will have a harder time getting the facts they need to file a claim if they are subject to discipline for interviewing employees or, more likely, former employees.  It will not engender respect for the rules if they are seen as favoring one class of lawyers and clients over another. 

And even apart from that risk, the rule is very impractical.  Suppose I represent a technology company that has hired an employee from a competitor.  The competitor then sues, claiming the employee has copied the competitor's work into my client's software.  The employee is bound by an NDA written to extend beyond termination of employment.  Am I seriously at risk of discipline for asking the employee about the allegations?  That makes no sense; the employee is the best source of information and I think I have a duty to find out what he or she knows. Or suppose an employee of a government contractor comes to believe the contractor is defrauding the government: If the employee contacts the U.S. Attorney's office in San Diego are the California lawyers in that office subject to discipline for asking her to relate the facts of the fraud?

A final, less important point. Proposed rule 4.3 seems perfectly designed to support interference with contract claims by former or current employers against lawyers who interview former or current employees.  This rule would seem to give such claims a significant boost by adding the condemnation of the ethics rules to the ordinary tort story. (Damages might be slight, but the threat of litigation should not be discounted.) California long fought against any exception to the duty of confidentiality (even one allowing lawyers to try to prevent death or bodily harm) in part (I think) to minimize the risk of liability based on failure to warn theories.  It is ironic that the proposed rule invites such liability now.

If anyone has a different reading of this language, or knows what the RRC is trying to achieve, I would welcome correction or amplification.  As it stands now, however, I hope this language does not become part of our rules.

DM