Interviewing the Nursing Home Staff: Rule 4.2 and Organizational Employees

Rule 4.2 governs: a lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent.

• Denise Pruitt? No. Rule 4.2's Comment 7 extends the organization's representation to employees whose acts or omissions in the matter may be imputed to the organization for purposes of civil or criminal liability, or whose statements may constitute admissions by the organization. Pruitt is a manager who set staffing levels and signed the incident report - her conduct is squarely at issue, and her statements would bind the company. Off limits.
• Marcus Hale? Generally yes. He is a line aide whose own conduct is not the basis of liability and whose statements are not admissions. Comment 7 cautions, however, that the lawyer should consider Rule 4.3 and should avoid asking about matters protected by the organization's privilege.
• Tessa Grey? Yes. Former employees generally are not "represented" by the organization's counsel for purposes of Rule 4.2, even as to conduct during employment. She is a witness, not the client.
• The blanket letter: A lawyer may not manufacture representation by assertion. Boyd & Tate's claim to represent "all personnel" is honored only as to those whom the law actually treats as represented. Chen should treat Pruitt as covered and test the letter as to Hale.

Rule 4.3 (dealing with an unrepresented person) supplies the ground rules.

• Identify himself and his role as Mrs. Alvarez's lawyer - unambiguously and up front. A witness should never leave the conversation believing the interviewer is neutral or is the company's lawyer.
• Do not give legal advice other than the advice to secure counsel, if the witness's interests appear to conflict with the client's. If Hale asks "could I get in trouble for this?" Chen should tell him to consult his own lawyer, not answer the question.
• Do not state or imply that Chen is disinterested.
• Respect privilege and loyalty: Chen may not solicit information protected by the attorney-client privilege or induce Hale or Grey to disclose their employer's confidences in breach of duty. He may ask about what they saw, staffing, and conditions.
• Rule 4.4(a): Chen may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person - no pressure, no misrepresentations about the consequences of refusing to talk.
• Chen should keep a contemporaneous record of what he told each witness, because the Rule 4.3 disclosures are frequently the subject of later motions.

That instruction is generally permissible, and Chen's options are limited - restraint is the right answer.

• A lawyer for an organization may properly instruct employees not to speak with opposing counsel; that is counseling a client and its agents, not obstruction. It is not a Rule 3.4 or 8.4 violation standing alone.
• The instruction does not bind Grey, a former employee. But Chen should not use her as a wedge: he may not tell Grey that the Boyd & Tate lawyer had no right to call her in a way designed to induce her to disregard the company's wishes or to breach confidences.
• If Grey says she has her own lawyer, or asks for advice, Chen must stop the substantive interview, confirm the representation, and go through that lawyer.
• If Boyd & Tate's letter or call was accompanied by threats or inducements (e.g., promising benefits or implying retaliation) directed at a former employee with no ongoing relationship, Chen may seek relief from the court - but he should not confront the witnesses about it.
• The practical path: subpoena Grey for deposition rather than rely on informal interviews, and raise any genuine witness-tampering concern with the court by motion, supported by Grey's own account.