The opinion of the court was delivered by: HARVEY BARTLE, III
This is a civil rights action in which a female police officer and a female police sergeant allege sexual harassment and retaliation by members of the Philadelphia Police Department ("the Department"). Plaintiffs have sued the City of Philadelphia, the Police Commissioner, and twelve other police officers of various ranks. At an early status conference, plaintiffs' counsel indicated his desire to interview non-party police officers without the presence of anyone representing the defendants. The City of Philadelphia opposed any ex parte interviews. To resolve the propriety of such contacts, the City has filed a motion for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.
The City contends that the Pennsylvania Rules of Professional Conduct preclude plaintiffs' counsel from ex parte communications with any current employee of the Department.
Pursuant to Local Rule 83.6 of the United States District Court for the Eastern District of Pennsylvania, the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania constitute the ethical rules which govern attorney conduct absent a specific rule of this court to the contrary. Rule 4.2 of those Rules 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.
The purpose of Rule 4.2 is to prevent lawyers from taking advantage of uncounselled lay persons and to preserve the efficacy and sanctity of the lawyer-client relationship. See G.C. Hazard, Jr., & W.W. Hodes, The Law of Lawyering 730 (2d ed. 1990); C.W. Wolfram, Modern Legal Ethics § 11.6 612-13 (1986).
Neither the Pennsylvania Supreme Court nor the Court of Appeals for the Third Circuit has spoken on the application of Rule 4.2 to ex parte communications with current employees of a represented party. However, the Comment
to Rule 4.2, which is intended to guide our interpretation of the Rule, provides in relevant part:
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. . . (Emphasis added).
According to the Comment, counsel may not communicate with three categories of individuals who are connected with an opposing organization. First, the rule protects persons having "managerial responsibility on behalf of the organization." The use of the present tense "having" indicates that this prohibition pertains to current employees only. Second, the rule covers any other person whose act or omission in connection with the matter may be imputed to the organization. This seems to apply to both present and former employees of the opposing party. Third, the rule applies to any other person whose statement may constitute an admission of the organization. The Federal Rules of Evidence define an "admission" as "a statement made by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed. R. Evid. 801(d)(2)(D).
Notwithstanding the language of Rule 4.2 and the Comment, defendants rely on several decisions for the proposition that an informal interview with any individual employee of the Philadelphia Police Department, even those not individually named as parties, would constitute an ethical violation. They are Univ. Patents, Inc. v. Kligman, 737 F. Supp. 325 (E.D. Pa. 1990); Niesig v. Team I, 149 A.D.2d 94, 545 N.Y.S.2d 153 (1989); and Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899 (E.D. Pa. 1991), appeal dismissed, 961 F.2d 207 (3rd Cir. 1992).
Defendants' reliance on Univ. Patents, Inc. is misplaced. In that case, University Patents, Inc. and the Trustees of the University of Pennsylvania sued to recover royalties from a Dr. Kligman. Plaintiff sought disqualification of Kligman's attorney because of ex parte contacts with university employees. Univ. Patents, Inc., 737 F. Supp. 325, 326 (E.D. Pa. 1990). The court held that Rule 4.2's prohibition on ex parte communications with opposing party applied to deans, trustees, department chairmen, and the provost of the university and that Rule 4.2 did not apply to former employees. Id. at 328. The Court did not enter a blanket prohibition against speaking to all of plaintiffs' employees. Rather, the court only forbade defendant from using any information obtained from (a) the university's officers, directors and managers; (b) those whose acts or omissions could bind or impute liability to the university and (c) those whose statements could be used as admissions. Id. at 330.
The City's citation of Niesig v. Team I is likewise without merit. In that personal injury case, plaintiff's counsel sought to interview privately a corporate defendant's employees who witnessed the accident. Niesig v. Team I, 149 A.D.2d 94, 95-6, 545 N.Y.S.2d 153, 153-4 (1989). The Appellate Division of the New York Supreme Court held that direct interviews by plaintiff's counsel were barred with all current employees of the defendant corporation who witnessed the underlying accident because ". . . there simply is no available criterion by which to determine which corporate employees belong to any given corporation's 'higher echelon,'and which employees belong to its 'lower' one." Id. at 104-05. However, the New York Court of Appeals reversed this broad prohibition. The Court of Appeals held that only those "employees with 'speaking authority' for the corporation, and employees who are so closely identified with the interests of the corporate party as to be indistinguishable from it, are deemed 'parties' for purposes of" the prohibition on ex parte contacts. Niesig v. Team I, 76 N.Y.2d 363, 558 N.E.2d 1030, 1035, 559 N.Y.S.2d 493 (1990).
Finally Action Air Freight, Inc., is of no help to the City. There plaintiff sought to enjoin defendant's counsel from conducting ex parte contacts with its former managerial employees and non-managerial employees who were currently working for the defendant. Action Air Freight, Inc., 769 F. Supp. 899, 900 (E.D. Pa. 1991). The court held that Rule ...