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Matter of Opinion 668 of Advisory Committee on Professional Ethics

Decided: December 14, 1993.

IN THE MATTER OF OPINION 668 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


On review of an opinion of the Advisory Committee on Professional Ethics.

For remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[134 NJ Page 296] In Opinion 668, 132 N.J.L.J. 573 (1992), the Advisory Committee on Professional Ethics (ACPE) addressed whether the rationale of State v. CIBA-GEIGY Corp., 247 N.J. Super. 314, 589 A.2d 180 (App.Div.), appeal granted, 126 N.J. 338, 598 A.2d 895 (1991), appeal dismissed, 130 N.J. 585, 617 A.2d 1213 (1992), which dealt with ethical restraints on ex parte interviews of current employees of a corporate litigant, applied with equal force to the conduct of ex parte interviews of former employees of a corporate litigant. In its analysis of the issue, the ACPE did not undertake its own review of the ethical principles stated in CIBA-GEIGY. The ACPE concluded that the rationale of CIBA-GEIGY applied with equal force to the conduct of ex parte interviews of former employees of a corporate litigant. We agreed to review the ACPE Opinion under Rule 1:19-8. 133 N.J. 414, 627 A.2d 1126. Because we have reservations about the scope of the CIBA-GEIGY decision, we have decided to reserve decision on the underlying ethical issues until we receive the report of a committee that will assess the concrete effects of a rule that we might adopt rather

than decide issues in the abstract. Today we set forth interim rules of conduct that will provide guidance to the bench and bar pending our final resolution of the issues. The committee should not consider those rules as binding on it; its recommendations should be independent of them except for such weight as the committee concludes their merits deserve.

I

This review primarily concerns the application of Rule of Professional Conduct (RPC) 4.2 to corporations. That ethics rule restrains a lawyer for one party from speaking directly to another party who is represented by counsel. RPC 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.

That rule is easily understood and readily applicable in the familiar context of a suit between two represented individuals, such as buyer and seller of real estate or husband and wife in a divorce matter. An attorney for the buyer simply may not communicate with the seller without the consent of the seller's attorney. But when the other party to a suit is a corporation, application of the rule becomes murky. Because a corporation cannot speak except through natural persons, the question is which persons associated with the corporation might be considered parties for the purposes of the rule.

The American Bar Association's (ABA) current commentary to RPC 4.2 would seemingly give the restraint on direct communication a broad sweep. The commentary states:

In the case of an organization, [ RPC 4.2] prohibits communications by a lawyer for one party concerning the matter in representation with [(a)] persons having a managerial responsibility on behalf of the organization, and with [(b)] any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or [(c)] whose statement may constitute an admission on the part of the organization.

[ Lawyers' Manual on Professional Conduct (ABA/BNA) 01:158 to 01:159 (1990).]

However, earlier commentary to RPC 4.2 did not suggest so broad an interpretation. The ...


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