II. Applicable Ethics Rules
Surreptitious discovery and investigations conducted or directed by lawyers implicate several ethics rules.17 The application of any rule or combination of rules will naturally depend on the facts of the particular case.
A. Model Rule 4.1(a)
Because concerns about lawyers' honesty permeate their involvement in surreptitious investigations and discovery, any analysis of lawyers' conduct in this context must encompass Model Rule 4.1(a), which states that in the course of representing a client, "a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person."18
Model Rule 4.1(a) is generally straightforward. It requires a false "statement," but a lawyer may make a false statement under Rule 4.1(a) by affirming or ratifying another person's false statement,19 or by failing to correct the other person.20 The reference to "a third person" makes clear that the rule relates to lawyers' communications with non-clients.21 "Knowingly" as used in this context, as elsewhere in the Model Rules, "denotes actual knowledge."22 Although lawyers' knowledge may be inferred from circumstances,23 the fact that a lawyer should have known something does not equal knowledge of that fact.24 Likewise, speculation and suspicion do not equate to knowledge. Furthermore, the term "knowledge" does not describe "evil intent or bad purpose."25 Innocent misstatements do not implicate Rule 4.1(a),26 but statements made with reckless disregard for the truth may.27 A statement of fact or law is "material" if it is significant or essential, if it "could have influenced the hearer,"28 or if it affected the outcome of the proceedings.29 Courts understandably evaluate materiality on a case-by-case basis.30
Rule 4.1(a) does not include a causation or reliance element. In other words, a lawyer violates the rule merely by making a prohibited statement. The recipient does not have to act or detrimentally rely upon the statement to perfect the violation.31Furthermore, Rule 4.1(a) does not require criminal intent by a lawyer, as in cases of perjury or forgery, to justify discipline.32 Indeed, Rule 4.1(a) does not require any intent to deceive by the lawyer; the lawyer's knowledge that a statement is false when made gives rise to the violation.33 A lawyer's intent to deceive, if any, goes to the discipline or sanction to be imposed for the violation.
B. Model Rule 4.2
Lawyers' covert investigations and surreptitious discovery activities often target people and organizations represented by counsel in the matter. Model Rule 4.2 addresses lawyers' communications with persons who are represented by counsel. The rule provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.34
At the outset, Model Rule 4.2 plainly requires that a lawyer be representing a client for a communication to be improper.35 This requirement is easily established in most cases. There is occasional debate, however, over whether a lawyer acting pro se is "representing a client" for purposes of the rule or is merely a litigant. The majority and better-reasoned view holds that a lawyer appearing pro se is representing a client for Rule 4.2 purposes.36 After all, Rule 4.2 is intended to protect unrepresented persons from overreaching by lawyers and against harm that might result from ill-advised statements that counsel's presence would have prevented, and a lawyer appearing pro se presents exactly these threats. A lawyer appearing pro se is not simply another litigant.
Model Rule 4.2 applies only where the person with whom a lawyer communicates is represented in the matter.37 As for the critical requirement of knowing whether a person is represented by a lawyer in a matter, that is easy where the other lawyer has entered her appearance, filed a pleading, or called, written, or sent an e-mail message to identify herself. Such clarity is not required to find a violation, however, because a lawyer's knowledge can be inferred from circumstances. Lawyers cannot avoid acquiring knowledge by turning a blind eye to circumstances indicating that a person is represented by counsel in the matter.38 Nonetheless, the Rule 4.2 knowledge requirement is clearly one of actual knowledge.39 There is authority for the proposition that lawyers are not required to ask someone whether he or she is represented in a matter before speaking with the person,40 although some courts expect this,41 and it is often wise to do so. In any event, a lawyer need not speculate about a person's representation, nor does suspicion about a person's representation determine a lawyer's obligations. For example, a person's statement that she should speak with someone else—such as a supervisor—before speaking with a lawyer does not support the conclusion that the lawyer knew of the person's representation.42 The mere fact that a person copies another lawyer on a letter does not establish that the person is represented in a mat-ter.43 In summary, the fact that a lawyer should have known that a person was represented in a matter will not support a Rule 4.2 violation.44
Questions occasionally surface about the existence or scope of a "matter."45 This is most common where litigation is contemplated but has not been initiated, and lawyers for the putative parties are gathering information in preparation for it, or where a person is involved in several enterprises or projects with legal aspects. Unfortunately, this is not an area that lends itself to uniform rules. Determinations of whether a matter exists, what matters are encompassed within a representation, and the scope and contours of matters all depend on the circumstances.46 All that said, Rule 4.2 clearly applies to lawyers' ex parte communications with represented persons before a lawsuit is actually filed.47
Model Rule 4.2 permits ex parte communications with the consent of the lawyer for the target person. It is common for more than one lawyer to be involved in a representation. For example, a party may have local counsel and lead or national
It is important to understand how Rule 4.2 applies to organizational litigants. Because an organization functions only through people, the question is which people affiliated with it hold a position or play a role sufficient to take on its attributes. Employees within this group are often referred to as members of the organization's "control group" or are said to be the organization's "alter egos." These shorthand descriptions come from various cases applying differing standards and are therefore imperfect, but regardless of how they are described for ease of reference, such employees are presumptively represented by counsel for the organization. Employees who are not within this constituent group are available for ex parte communications unless they are separately represented.48
Courts typically look to the comments to Rule 4.2 for guidance when deciding which employees are off-limits. For years the commentary to the rule provided:
In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a [1] managerial responsibility on behalf of the organization, and [2] 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 [3] whose statement may constitute an admission on the part of the organization.49
The commentary to Model Rule 4.2 was significantly revised in 2002 as part of the ABA's Ethics 2000 initiative, and Comment 7 to the rule now provides:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.50
A few jurisdictions have departed from the ABA approach to adopt the "managing-speaking agent test."51 Under this test, communication is prohibited with employees who have "'speaking authority' for the corporation," meaning those employees "who 'have managing authority sufficient to give them the right to speak for, and bind the corporation.'"52
Ex parte communications are a regular issue in lawyers' investigations,53 as Wal-Mart Stores, Inc. v. Goodman54 illustrates. In that case, plaintiff Lashawna Goodman was arrested for allegedly shoplifting a telephone from a Wal-Mart store. She contended that she was exchanging a telephone she had purchased at another store. After beating the criminal charges, she sued Wal-Mart for malicious prosecution and won a sizable verdict. On appeal, Wal-Mart argued that it was entitled to a new trial by virtue of the investigation conducted by Goodman's lawyer.
Goodman's lawyer had gone to the subject Wal-Mart store and attempted to replicate some key events leading to Goodman's arrest in order to cross-examine a Wal-Mart corporate representative at trial.55 In doing so, he spoke at some length with an assistant store manager. The Alabama Supreme Court determined that the lawyer's interview of the assistant manager was proper because the assistant manager did not act as a corporate agent with authority to bind Wal-Mart, nor did he have the authority to commit Wal-Mart to his statements.56 Thus, Goodman's counsel was not required to notify Wal-Mart of his intention to speak with its employee, and those communications provided no basis for a new trial.57
If lawyers for an organization are concerned about opposing lawyers' ex parte contact with otherwise...
