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State v. Ciba-Geigy Corp.

Decided: April 10, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
CIBA-GEIGY CORPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Mercer County.

Long, R.s. Cohen and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

Our Rules of Professional Conduct, RPC 4.2 Communication with Person Represented by Counsel, provides:

In representing a client, 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.

Based on this rule, defendant CIBA-GEIGY moved for a protective order prohibiting the State from initiating ex parte communications with defendant's employees. An indictment against defendant is now pending trial.

Before us, defendant argues that it seeks an order only with respect to "interrogation of CIBA-GEIGY employees whose acts or omissions the State sought to impute to CIBA-GEIGY for the purpose of establishing corporate criminal liability". The trial judge denied the motion concluding that the rule did not prohibit the Attorney General from conducting ex parte interviews of current or former employees of a corporate defendant, even though that corporation is represented by counsel. The court expressly ruled that those communications could include employees whose acts or omissions the State sought to impute to the defendant. We granted leave to appeal and accelerated oral argument.

I.

CIBA-GEIGY does not contest the general proposition under existing New Jersey law that evidence obtained in violation of a disciplinary rule need not be suppressed. See State v. Riley, 216 N.J. Super. 383, 390, 523 A.2d 1089 (App.Div.1987); State v. Darby, 211 N.J. Super. 367, 376, 511 A.2d 1222 (App.Div.1986),

certif. denied 105 N.J. 559, 523 A.2d 192 (1986);*fn1 State v. Porter, 210 N.J. Super. 383, 393-94, 510 A.2d 49 (App.Div.1986), certif. denied 105 N.J. 556, 523 A.2d 191 (1986). Therefore, we question whether there is an issue for appropriate consideration in the criminal, as opposed to some future disciplinary, proceedings.*fn2 However, the State does not raise this procedural defense; it seeks to avoid any disciplinary wrongdoing, and defendant seeks to protect its interests. Further, no published opinion appears to decline consideration of the issue based on appropriate forum, the trial court ruled upon the merits of defendant's application in this case, and the parties are entitled to know their rights and responsibilities with respect to the immediate concern. The Advisory Committee on Professional Ethics would probably be required to decline consideration of the issue because it involves "a pending action where its opinion might affect the interests of the parties. . . ." R. 1:19-2. Accordingly, there is a real dispute between the parties affecting a pending case, and we consider the issues raised.

II.

There is no doubt that RPC 4.2 applies to corporations. Nor is it limited to civil proceedings.*fn3 The real issue before us,

therefore, is whether any employees, and if so which employees, are "parties" for purposes of the rule.

Defendant essentially urges that the State wants to speak with employees who would not be "interviewed as witnesses but as corporate employees whose acts the State is trying inappropriately to impute to the corporation." According to the defendant, it "does not wish to 'restrict the flow of information' available to the State, and [it] is willing to make available to the State any of its present or former employees who wish to be interviewed." In fact, a party cannot generally ask a witness "to refrain from voluntarily giving relevant information to another party," RPC 3.4(f). All that defendant requests (in addition to the witnesses' "right to accept or refuse to be interviewed", a right which is acknowledged by the State, see State v. Roszkowski, 129 N.J. Super. 315, 317-318, 323 A.2d 531 (App.Div.1974), certif. denied 66 N.J. 325, 331 A.2d 25 (1974); State v. Boiardo, 172 N.J. Super. 528, 412 A.2d 1084 (Law Div.1980); United States v. Addonizio, 313 F. ...


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