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Conducting Ex Parte Interviews
Basic Rule on Ex Parte Contacts
Indiana Rule of Professional Conduct 4.2 succinctly states the universal, building-block rule on ex parte contacts: “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 by law or a court order.” (Emphasis added). An attorney may not speak with a represented party concerning the matter at issue in the litigation, unless the party’s attorney consents. See In re Mahoney, 437 N.E.2d 49 (Ind. 1982). Conversely, the party can never consent. See Ind. R. Prof. Cond. 4.2, cmt.3. This basic prohibition expressly applies only to parties and, specifically those parties in this matter; therefore, parties outside of the case at hand may be interviewed, even if represented, and witnesses other than parties to the action are generally not included in the prohibited class. See Valassis v. Samelson, 143 F.R.D. 118, 122 (E.D. Mich. 1992). The public policy behind the ethical mandate of Rule 4.2 is protecting the integrity and fairness of the adversary system of justice. See Curley v. Cumberland Farms, Inc., 134 F.R.D. 77, 82 (D.N.J.1991) (Rule designed to, “preserve the integrity of the attorney-client relationship by protecting a represented party from being taken advantage of by adverse counsel.”). Attorneys are free to inform clients and witnesses of their right to refuse to answer informal communications by opposing counsel. See Ex Parte Nichols, 624 So.2d 1325, 1327 (Ala. 1992); Stephen D. Easton, Can We Talk?: Removing Counterproductive Ethical Restraints Upon Ex Parte Communications Between Attorneys and Adverse Expert Witnesses, 76 Ind. L.J. 647, 738-39 (2001).
Class Action Party Members
Present and Past Corporate Employees
There has been a great deal of controversy regarding ex parte contacts with current or former employees of corporate parties. Many commentators have urged, and some courts have held, that the prohibition extends to all current employees as well as all former employees. See, e.g., Cagguila v. Wyeth Lab., Inc., Div. Of Am. Home Prods., 127 F.R.D. 653 (E.D. Pa 1989); Hume, supra, at 972-74. However, an expansion to former employees has been dissuaded by the American Bar Association, and expressly rejected by Indiana courts. See ABA Formal Opinion 91-359 at 3; P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 738 (Ind. App. 2002) (As former employees cannot rationally be considered “parties” to the litigation and have no especial interest in the outcome, no prohibition against ex parte contact should exist.)
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)