Plaintiff, Neil S. Sullivan, instituted this suit against the defendants, Medco Containment Services, Inc., Medco Data Corporation and Paid Prescriptions, Inc., alleging that defendants are guilty of breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff's cause of action arises from a contract for work which was to have been performed by plaintiff on defendant's computer room project. James Nelson, now a resident of Ohio, was defendant Paid Prescriptions Vice President of Computer Operations and was personally responsible for overseeing the construction of the computer room. Mr. Nelson was terminated from his employment in June, 1990, ten months before plaintiff filed his complaint.
Plaintiff has brought a motion before this court seeking permission to conduct an ex parte telephone interview with defendant's former employee, James Nelson. The reasons provided by plaintiff for allowing an ex parte interview are simply that a telephone interview would avoid the deposition costs and
travel expenses which would be incurred if Mr. Nelson had to be deposed in Ohio. Moreover, an ex parte interview would avoid any chilling effect potentially caused by the presence of defendant's counsel.
The conducting of an ex parte interview with defendant's former employee is regulated by Rule 4.2 of the American Bar Association Model Rules of Professional Conduct. Rule 4.2 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.
RPC 4.2 is an ethical rule which was created to preserve the integrity of the attorney-client relationship. This ethical rule protects a represented party from the experience and skill of opposing counsel by prohibiting any communications without the consent of the represented party's attorney. RPC 4.2 also serves the purpose of preventing a professionally trained attorney from coercing damaging admissions from an inexperienced layman.
There are several cases in this jurisdiction which have addressed RPC 4.2 and its applicability to ex parte communications with a party's former employees. A chronological overview of these cases reveals that the most recent decisions, which permit ex parte interviews with a party's former employees, represent the proper governing law in this area.
On September 19, 1990, the Honorable Nicholas H. Politan held in the case of Public Service Electric & Gas v. Associated Electric & Gas Insurance Services, LTD., 745 F. Supp. 1037 (D.N.J.1990) (PSE & G) that RPC 4.2 operates as an absolute prohibition against an opposing counsel contacting a former employee of a corporate party for the purposes of conducting an ex parte interview. In so deciding, Judge Politan considered the comment to RPC 4.2, which provides in relevant part:
In the case of an organization, the Rule prohibits communications by a lawyer for one party concerning the matter in ...