Camden v. State of Md.

910 F. Supp. 1115

Dorothy C. CAMDEN, Plaintiff, v. The STATE OF MARYLAND, et al. Defendants.

Civil No. PJM 93-1854.

United States District Court, D. Maryland, Southern Division.

January 24, 1996.

Alvin I. Frederick, Rachel T. McGuckian, Eccleston & Wolf, Baltimore, MD, Joseph B. Chazen, Leslie A. Pladna, Mindy S. Kursban, Meyers, Billingsley, Shipley, Rodbell and Rosenbaum, Riverdale, MD, for plaintiff.

Dawna M. Cobb, Anne L. Donahue, Office of Attorney General, Baltimore, MD, for defendants.

OPINION

MESSITTE, District Judge.

I.

The Court holds that a lawyer representing a client in a matter may not, subject to few exceptions, have ex parte contact with the former employee of another party interested in the matter when the lawyer knows or should know that the former employee has been extensively exposed to confidential client information of the other interested party. As a rule, such ex parte contact may occur only with the consent of the other interested party's lawyer or approval of the court. "Other interested parties" for purposes of this standard include corporations and other organizations. Because the Court finds this rule to have been breached by Plaintiff's counsel in the present case with the consequence that confidential communications and documents were improperly obtained, the Court will grant Defendants' Motion to Strike the Testimony of Richard Redmond and to Disqualify Plaintiff's Counsel.

II.

In this suit, Dorothy Camden has sued her former employer, Bowie State University (BSU), a public institution of higher learning located in Bowie. Camden, a former instructor at BSU, alleges that BSU discriminated against her on the basis of her race (white) and age (over 40) when she was discharged in 1992. When Camden first complained to BSU, it assigned the investigation to Richard Redmond, Special Assistant to the President of BSU for affirmative action programs, on loan from the U.S. Department of the Interior.¹

John Dill, Provost and Vice President for Academic Affairs at BSU at the time, specifically advised Camden's lawyers, Meyers, Billingsley, Rodbell and Rosenbaum (MBRR),² that Redmond was the "principal contact person" at BSU that they should deal with regarding her case. As part of his duties, Redmond consulted with top BSU administrative officials and BSU's attorneys regarding the case and was actively involved in the sending and receiving of confidential communications, including assessments of Camden's claims and appraisals of the likelihood of their success.

At one point during the investigation, Joseph Chazen, a member of MBRR, sought to have ex parte contact with Redmond but John Anderson, an Assistant Attorney General of Maryland and BSU's attorney, objected. Chazen, according to Anderson, agreed to refrain from such contact.³

When Camden and BSU were unable to resolve their differences informally, Camden, represented by MBRR, initiated a complaint with the Equal Employment Opportunity Commission (EEOC). Redmond prepared and signed BSU's response to the complaint. When the EEOC, without investigating or determining the matter, issued its right to sue letter, Camden commenced this litigation represented, as before, by MBRR.

As it happens, Redmond himself came to a parting of the ways with BSU and his contract ended on less than amicable terms. In the course of discovery, however, BSU, responding to an interrogatory, identified Redmond as someone having knowledge of facts material to the case. Redmond was never deposed during the period the Court established for discovery and it remains unclear whether he was contacted by counsel for either side during that period.

Redmond's first appearance in the lawsuit came as an affiant in support of Camden's Motion for Leave to File a Second Amended Complaint and for a Revised Scheduling Order. In his affidavit, Redmond, who had obviously been contacted by Camden's counsel by that time, unloaded something of a bombshell. According to Redmond, Provost Dill had told him apropos of the Camden case that a white woman should not be counseling black males. Moreover, Redmond stated that he had relayed this information to Dawna Cobb, an Assistant Attorney General representing BSU, but Cobb had "down-played" its significance. Redmond's affidavit also implied that he was in possession of certain BSU documents pertinent to the Camden case.

When Cobb received Redmond's affidavit, she immediately wrote to Leslie Pladna, another MBRR attorney representing Camden, advising that, by virtue of Redmond's intimate involvement in the case on behalf of BSU, Defendants objected to MBRR's ex parte contact with him.⁴ Cobb requested to be present during MBRR's future contacts with Redmond or that such contacts be subject to appropriate court order. She also demanded a copy of Pladna's notes based on the latter's conversations with Redmond, as well as copies of any and all documents Redmond might have given Pladna, indicating that Redmond might be in possession of documents he was not authorized to have. In response, Pladna refused to refrain from ex parte contact with Redmond, to seek a court order, or to supply a copy of her notes, but agreed to send Cobb a copy of all the documents Redmond had given to her.⁵

Cobb thereupon filed a Motion to Strike Redmond's Affidavit and to Disqualify MBRR from the case.⁶

At oral argument on the Motion, the Court determined that it would be helpful if the parties would schedule a special deposition of Redmond in order to establish precisely what he had disclosed in his discussion with Camden's attorneys. At the deposition, held soon after, Redmond indicated that he had in fact disclosed certain communications between himself and BSU's attorneys, as well as confidential communications prepared by or based on advice of counsel, including counsel's appraisal of the strength of Camden's case. The parties then filed supplemental briefs to the Court.

III.

Judges and commentators have devoted a great deal of attention to the question of when, if ever, employees or former employees of an organization may be contacted by adverse counsel and, to the extent that they may, what may be asked of them.

Rule of Professional Conduct 4.2 provides the point of departure.⁷ The rule prohibits communication "about the subject of a lawyer's 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." The comment to the rule suggests that it applies to at least a limited category of control group employees in an organizational setting. Thus the comment states that

in the case of an organization, this Rule prohibits communication by a lawyer for one party concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with 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 whose statement may constitute an admission on the part of the organization.⁸

A number of authorities have suggested that the rule should not be expanded to include any other category of current employees or to include former employees at all. Applicable to Managerial Employees only: See, e.g., Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564 (1984) (limiting no-contact rule to one in position of "managing-speaking" for organization); see generally John D. Hodson, Annotation, Right of Attorney to Conduct Ex Parte Interviews With Corporate Party's Nonmanagement Employees, 50 A.L.R.4th 652 (1986 & Supp. 1985); Not Applicable to Former Employees: E.g. Wright, 103 Wash.2d at 201, 691 P.2d at 569 ("former employees cannot possibly speak for the corporation"); Curley v. Cumberland Farms, Inc., 134 F.R.D. 77 (D.N.J. 1991); ABA Comm. on Ethics and Professional Responsibility, Formal Op. 91-359 (1991) (contact with former employee of adverse corporate party) (persuasive policy arguments can be made for extending rule to some former employees, but text and comment do not warrant it); Md.State Bar Ass'n Comm. on Ethics, Op. 86-13 (1986) (communication with non-lawyers: contact with former employee of corporate opposing party) (contact permitted); Md.State Bar Ass'n Comm. on Ethics, Op. 90-29 (1990) (same); see generally Susan J. Becker, Conducting Informal Discovery of a Party's Former Employees: Legal and Ethical Concerns and Constraints, 51 Md.L.Rev. 239 (1992) (contact recommended).

But other authorities have argued that the no-contact rule should be read to cover broader categories of current employees as well as extend to former employees. Applicable to more than just managers: Niesig v. Team 1, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 498, 558 N.E.2d 1030, 1035 (1990) (rule prohibits communications with managers and any other person whose acts may be imputed to organization or constitute binding admission or employees implementing advice of counsel; but rule not applicable to former employees); Louis A. Stahl, Ex Parte Interviews with Enterprise Employees: A Post-Upjohn Analysis, 44 Wash & Lee L.Rev. 1181 (1987); Applicable to Former Employees: Porter v. Arco Metals Co., 642 F.Supp. 1116, 1118 (D.Mont.1986); Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36 (D.Mass.1987); In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 658 F.2d 1355, 1361 n. 7 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982) (hereinafter Petroleum Products); Bobele v. Superior Court, 199 Cal.App.3d 708, 245 Cal.Rptr. 144 (1988); Mills Land & Water Co. v. Golden West Refining Co., 186 Cal.App.3d 116, 230 Cal. Rptr. 461 (1986); Hazard & Hodes, supra, at § 4.2:107 (2d ed. Supp.1994); Samuel R. Miller & Angelo J. Calfo, Ex Parte Contact With Employees and Former Employees of a Corporate Adversary, 42 Bus.Law. 1053 (1987).

Determining which of these views...