Reynoso v. Greynolds Park Manor, Inc., 95-1290

• Decision Date: 10 August 1995
• Docket Number: No. 95-1290,95-1290
• Citation: 659 So.2d 1156
• Parties: 20 Fla. L. Weekly D1852 Walter REYNOSO, as Guardian of Cathleen Mangan, an Incompetent, Petitioner, v. GREYNOLDS PARK MANOR, INC., a Florida corporation, Respondent.
• Court: Florida District Court of Appeals

Page 1156

659 So.2d 1156

20 Fla. L. Weekly D1852

Walter REYNOSO, as Guardian of Cathleen Mangan, an Incompetent, Petitioner, v. GREYNOLDS PARK MANOR, INC., a Florida corporation, Respondent.

No. 95-1290.

District Court of Appeal of Florida Third District.

Aug. 10, 1995.

Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel D. Eaton;

Freidin & Hirsh and Jeffrey Stephen Hirsh, Miami, for petitioner

Wicker, Smith, Tutan, O'Hara, McCoy, Graham, Lane & Ford and Shelley H. Leinicke, Fort Lauderdale, for respondent.

Before JORGENSON, COPE and GREEN, JJ.

On Rehearing Granted

COPE, Judge.

The court grants the petitioner's motion for rehearing, withdraws its previous disposition in this case, and substitutes the following opinion:

Walter Reynoso petitions for a writ of certiorari to quash a trial court order forbidding petitioner-plaintiff from conducting ex parte interviews with former employees of respondent-defendant Greynolds Park Manor, Inc. We grant the petition.

Plaintiff Reynoso is the guardian of an elderly incompetent, Cathleen Mangan. He has filed an action on her behalf against defendant Greynolds Park Manor, Inc., a nursing home. The lawsuit alleges that the ward suffered personal injury while in the care of defendant nursing home, in violation of section 400.022, Florida Statutes (1993), and the common law duty of care.

During discovery, plaintiff requested information regarding former nursing home employees who had cared for the ward during the time periods relevant to the lawsuit. The nursing home moved for a protective order to preclude the plaintiff from any ex parte contact with former nursing home employees. The motion for protective order was based on the Second District decision in Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995). The Barfuss court interpreted Rule 44.2 of the Rules of Professional Conduct to preclude plaintiff's counsel from having any ex parte contact with former employees of a nursing home who had cared for and treated the plaintiff. Id. at 487-88.

The trial court in the present case concluded that it was obliged to follow Barfuss because Barfuss was directly on point and this court had not previously addressed the issue. See Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992). Consequently the court granted the protective order.

By virtue of the protective order, plaintiff's counsel is precluded from contacting, or using an investigator to interview, the sixty former nursing home employees who previously cared for the ward. Instead plaintiff may only obtain discovery from those individuals by scheduling sixty depositions. Plaintiff has petitioned for a writ of certiorari.

The question presented here is whether Rule of Professional Conduct 4-4.2 prohibits plaintiff's counsel (or investigator) from making direct contact with former employees of a corporate defendant. Rule 4-4.2 provides:

RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

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. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client in order to meet the requirements of any statute or contract requiring notice or service of process directly on an adverse party, in which event the communication shall be strictly restricted to that required by statute or contract, and a copy shall be provided to the adverse party's attorney.

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, ¹ although there is authority We certify that this decision is in direct conflict with the decision of the Second District Court of Appeal in Barfuss. Because the issue presented here affects numerous cases in litigation, as well as the scope of attorneys' ethical responsibilities under Rule 4-4.2, there is a need for an authoritative resolution by the Florida Supreme Court.

                to the contrary. 2  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
                

For the reasons stated, the petition for writ of certiorari is granted and the order prohibiting interviews with former employees is quashed.

Certiorari granted; direct conflict certified.

APPENDIX

ABA/BNA Lawyers' Manual on Professional Conduct

ETHICS OPINIONS

ABA FORMAL OPINIONS

FORMAL OPINION 91-359

MARCH 22, 1991

Contact With Former Employee Of Adverse Corporate Party

The prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party.

The Committee has been asked for its opinion whether a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without the consent of the corporation's lawyer, communicate about the subject of the representation with an unrepresented former employee of the corporate party.

The starting point of our inquiry is Model Rule of Professional Conduct 4.2, which states:

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.

The rule is, for purposes of the issue under discussion, substantially identical to DR 7-104(A)(1), which states as follows:

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

The comment to Rule 4.2 makes clear that corporate parties are included within the meaning of "party" in that Rule, and is helpful in defining the contours of that rule as it applies to present employees of corporate parties:

(1) This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with non lawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.

(2) In the case of an organization, this Rule prohibits communications by a lawyer for one 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. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for the purposes of this Rule. Compare Rule 3.4(f).

(3) This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.

The rationale on which Rule 4.2 was formulated was identified in Wright v. Group Health Hospital, 103 Wash.2d 192, 691 P.2d 564, 567 (1984).

The purposes of the rule against ex parte communications with represented parties are "preserving the proper functioning of the legal system and shielding the adverse party from improper approaches." (Citing ABA Formal Opinion 108 (1934)).

The profession has traditionally considered that the presumptively superior skills of the trained advocate should not be matched against those of one not trained in the law. As discussed at Law.Man.Prof.Conduct 71:302.

... The rule against communicating with the opposing party without the consent of that party's lawyer does not admit of any exceptions for communications with "sophisticated" parties. Maru, 10861 (Fla.Bar Op. 76-21 (4/19/77)). See also Waller v. Kotzen, 567 F.Supp. 424 (E.D.Pa.1983) (plaintiff's counsel contacted insurance company directly, after insurer was represented by counsel); Estate of Vafiades v. Sheppard Bus Service , 469 A.2d 971 (N.J.Super.1983) (negotiations were conducted with insurance company for defendants) cf. Meat Price Investigators Assn. v. Iowa Beef Processors, 448 F.Supp. 1, 3 (S.D.Iowa 1977) (while leaving question of culpability of counsel's conduct to disciplinary authorities, court declined to disqualify counsel for interviewing an officer of an opposing party who was a "sophisticated businessman who was openly willing to share his knowledge of the beef industry with attorneys he knew to be plaintiff's counsel.") See also Code of Professional Responsibility EC 7-18:

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