H.B.A. Management, Inc. v. Estate of Schwartz By and Through Schwartz

• Citation: 693 So.2d 541
• Decision Date: 01 May 1997
• Docket Number: No. 88239,88239
• Parties: 22 Fla. L. Weekly S236, 57 A.L.R.5th 855 H.B.A. MANAGEMENT, INC., Petitioner, v. The ESTATE OF May SCHWARTZ, Deceased, by and through the Personal Representative, Alex Schwartz, Respondent.
• Court: Florida Supreme Court

Page 541

693 So.2d 541

22 Fla. L. Weekly S236, 57 A.L.R.5th 855

H.B.A. MANAGEMENT, INC., Petitioner, v. The ESTATE OF May SCHWARTZ, Deceased, by and through the Personal Representative, Alex Schwartz, Respondent.

No. 88239.

Supreme Court of Florida.

May 1, 1997.

Nancy W. Gregoire and Richard T. Woulfe of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, P.A., Fort Lauderdale, for Petitioner.

James L. Wilkes, II and James B. McHugh of Wilkes and McHugh, P.A., Tampa, and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, for Respondent.

Philip D. Parrish and Robert M. Klein of Stephens, Lynn, Klein & McNicholas, P.A. Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Academy of Florida Trial Lawyers, Amicus Curiae.

Miami, for The Florida Defense Lawyers Association, Amicus Curiae.

Robert A. Butterworth, Attorney General and Douglas J. Glaid, Senior Assistant Attorney General, Fort Lauderdale, for Department of Legal Affairs, Amicus Curiae.

ANSTEAD, Justice.

We have for review the decision of the Fourth District in Estate of Schwartz v. H.B.A. Management, Inc., 673 So.2d 116 (Fla. 4th DCA 1996), based upon certified conflict with the opinion of the Second District in Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision under review, and disapprove Barfuss. In accord with the overwhelming majority of jurisdictions and bar ethics committees, we hold that Florida Rule of Professional Conduct 4-4.2, governing the contact by attorneys with persons represented by counsel, does not prohibit a claimant's attorney from engaging in ex parte ¹ communications with former employees of a defendant-employer.

MATERIAL FACTS

Alex Schwartz, as personal representative of the estate of May Schwartz (Schwartz), filed an action for damages against Tamarac Convalescent Center, operated by petitioner H.B.A. Management, Inc. (HBA). HBA moved to prohibit Schwartz's counsel from contacting Tamarac's current and former employees, and also requested access to all statements and notes that Schwartz's counsel may have previously obtained from those employees. On the authority of Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995), the trial court prohibited ex parte communications by Schwartz's counsel with all current and former employees of the convalescent center and required disclosure of any notes and statements already obtained by counsel from those employees. The Fourth District, specifically disagreeing with the decision in Barfuss as to contacts with former employees, quashed the trial court's order, relying instead on the reasoning of a Florida Bar committee advisory opinion as to the propriety of contacts with former employees of a defendant-employer. Schwartz, 673 So.2d at 118.

LAW & ANALYSIS

At issue is whether Florida Rule of Professional Conduct 4-4.2 prohibits ex parte communications between a claimant's attorney and the former employees of a defendant-employer. The parties agree that, at a minimum, the rule limits attorney contact with certain current employees.

Rule 4-4.2, titled "Communication with Person Represented by Counsel," provides in pertinent part:

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.

In addition, the comment to this rule states in pertinent part:

In the case of an organization, this rule prohibits communications by a lawyer for 1 party concerning the matter in representation with persons having a 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.

The ABA Model Rules of Professional Conduct Rule 4.2 (1995) and the comment thereto contain the same provisions. Obviously, as its title pointedly discloses, the Florida rule addresses the ethical parameters for communications by attorneys or their agents with persons represented by legal counsel.

                The rule itself is unambiguous and should present little difficulty when a lawyer contemplates communication with a "person" who is an individual human being represented by counsel.  The problem arises when the "person" is an entity or organization who has numerous employees or agents.  Is it proper to contact any of those employees and agents without the permission of the entity's lawyer?   And, if so, which ones?   The comment to the rule specifically addresses these concerns and identifies those employees and agents who should not be contacted.  HBA asks this Court to interpret the rule as ethically proscribing an attorney's ex parte communications not only with persons currently associated with an organization, but also with those who have severed ties with the organization
                

DISTRICT COURT DECISIONS

In Barfuss, the Second District approved a trial court's order prohibiting ex parte communications with a nursing home's former employees, 656 So.2d at 489, and reasoned that "this limited restriction does not depart from the essential requirements of law, as the employees who cared for and treated Barfuss are the very persons whose actions or inactions form the basis for the complaint." Id. at 488-89.

On the other hand, in Schwartz, the Fourth District limited the application of the rule to current employees and reasoned:

In this instance we find Florida Bar Ethics Opinion 88-14, which conflicts with the Barfuss opinion, controlling. In Ethics Opinion 88-14, The Florida Bar Board of Governors of Florida interpreted Rule of Professional Conduct 4-4.2. The Board decided that rule 4-4.2 did not prevent counsel from contacting "former employees who have not maintained any ties with the corporation--who are no longer part of the corporate entity--and who have not sought or consented to be represented in the matter by the corporation's attorneys." The ABA later took the same position in interpreting Model Rule 4.2, concluding that nothing in the rule prevented counsel from speaking to the opposing party's former employee about the subject matter of a lawsuit, even where that employee's negligence could be imputed to the party. ABA Formal Op. 91-359 (Mar. 22, 1991).

Schwartz, 673 So.2d at 118-19 (citation omitted). The Schwartz opinion followed the holding in Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156 (Fla. 3d DCA 1995), wherein the Third District also quashed a protective order, similar in content to those reviewed in Schwartz and Barfuss. The Reynoso opinion reasoned:

We conclude that the proscription of Rule 4-4.2 does not extend to former corporate employees.

The question presented here has been thoroughly, and in our view correctly, analyzed in American Bar Association Formal Ethics Opinion 91-359, dated March 22, 1991, and Florida Bar Ethics Opinion 88-14, issued March 7, 1989. We adopt their reasoning and incorporate them in the Appendix to this opinion. In so holding we align ourselves with the great majority of the courts to have considered this issue, although there is authority to the contrary. We point out the caveats contained at the end of the American Bar Association and Florida Bar opinions, reminding counsel that no inquiry can be made into any matters that are the subject of the attorney-client privilege, and that the requirements of Rule 4-4.3, entitled "Dealing With Unrepresented Persons," must be scrupulously observed.

Reynoso, 659 So.2d at 1157-58 (footnotes omitted).

BAR ETHICS OPINIONS

In concluding that rule 4-4.2 does not prohibit ex parte communications with former employees, Florida Bar Professional Ethics Comm. Op. 88-14 (Mar. 7, 1989), the Florida Bar's Committee on Professional Ethics has determined that:

Nothing in Rule 4-4.2 or the comment states whether the rule applies to communications with former managers and other former employees. To the extent that the comment implies that the rule does apply to these individuals, it is contrary to ethics committees' interpretation of the rule.

Rule 4-4.2 cannot reasonably be construed as requiring a lawyer to obtain permission of a corporate party's attorney in order to communicate with former managers or other former employees of the corporation unless such individuals have in fact consented to or requested representation of the corporation's attorney. A former manager or other employee who has not maintained ties to the corporation (as a litigation consultant, for example) is no longer part of the corporate entity and therefore is not subject to the control or authority of the corporation's attorney. In many cases it may be true that the interests of the former manager or employee are not allied with the interests of the corporation. In such cases the conflict of interests would preclude the corporation's attorney from actually representing the individual and therefore would preclude the corporation's attorney from controlling access to the individual. As the comment indicates with regard to current employees, if a former manager or former employee is represented in the matter by his personal attorney, permission of that attorney must be obtained for ex parte contacts, including contacts by the corporation's attorney.

A former manager or employee is no longer in a position to speak for the corporation. Further, under both the federal and the Florida rules of evidence, statements that might be made by a former manager or other employee during an ex parte interview would not be admissible against the corporation. Both Rule 801(d)(2)(D), Federal Rule of Evidence, and Section 90.803(18)(e), Florida Evidence Code, provide that a...