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A medical malpractice plaintiff’s counsel may engage in ex parte communications with the opposing party’s former employees, a Pennsylvania common pleas court judge has held. “We understand the hospital’s natural preference that its counsel be present whenever its former employees are contacted by opposing counsel,” Lycoming County Common Pleas Court Judge William S. Kieser wrote in Wein v. The Williamsport Hospital, PICS Case No. 00-0959 (C.P. Lycoming April 19, 2000) Kieser, J. “Nevertheless, there is simply no law or rule under which such contact is prohibited.” The issue arises out of a medical malpractice case filed by Robert Wein against The Williamsport Hospital. Wein served interrogatories on the hospital seeking the names, addresses and telephone numbers of former employees. The hospital responded by providing only the names of the former employees, stating that contact was to be made through the hospital’s counsel. The court summarily decided that the hospital was required to provide the plaintiff’s counsel with phone numbers and addresses of former employees. But its inquiry didn’t end there. “This motion itself does not address the appropriateness of plaintiff’s counsel engaging in ex parte communications with former employees of the hospital, yet counsel both briefed this issue and argued it to the court,” Kieser said. “Should we decline to address the issue, we have no doubt it will return to us shortly. Therefore, in the interests of judicial economy we will consider it now.” Noting that there is no “controlling” authority on the question of whether counsel may communicate ex parte with former employees of the defendant, the court said both parties in the case cited Rule 4.2 of the Rules of Professional Conduct for support. Rule 4.2 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.” But “nothing in this statement is directly on point with respect to the issue which is now before the court,” the judge said, stating that both parties based their arguments on the comment to Rule 4.2 in their briefs. The comment states that the rule prohibits communications by a lawyer with “any … 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 party of the organization.” But the judge said the parties’ reliance on the rule and its comment was misplaced, citing a decision by Allegheny County Common Pleas Court Judge R. Stanton Wettick. Considering the same issue in Pritts v. Wendy’s, PICS Case No. 98-1486 (C.P. Allegheny June 23, 1998) Wettick, J., Wettick “observed that courts should not interfere with efforts by counsel to interview witnesses except to enforce well-recognized prohibitions,” Kieser said. “Acknowledging that the Pennsylvania Supreme Court has ruled that courts may not use the Rules of Professional Conduct to alter substantive law or evidentiary rules, the judge was nevertheless willing to render a decision, finding that a court order based on (Disciplinary) Rule 4.2 barring an attorney from communicating with another party who is represented by counsel did not impact on the substantive law and rules of evidence that would govern the litigation,” the Wein court said. “Judge Wettick’s decision is consistent with both the position of the Pennsylvania Bar Association and the American Bar Association.” According to Kieser, in Formal Opinion 90-142, the Legal Ethics and Professional Responsibility Committee of the PBA determined that a lawyer may engage in ex parte communications with former employees of an opposing party “if appropriate safeguards are employed to minimize the risk of overreaching by the investigating party.” The safeguards proposed by the committee are as follows: * The attorney is prohibited from eliciting or using any information that may be protected by attorney-client privilege. * The attorney must immediately disclose his or her capacity to the former employee. * Any request by the person contacted that his or her personal attorney or the company’s attorney be present must be honored. * The attorney should advise the person that he or she has the right to refuse to be interviewed or to be interviewed with the company’s counsel present. Likewise, Kieser said, in Formal Opinion 91-359, the Committee on Ethics and Professional Responsibility of the ABA also indicated that ex parte communications with former employees was acceptable if certain safeguards were observed. “These safeguards mirror those set forth in the PBA opinion,” Kieser said. The ABA noted in its opinion that “the concerns reflected in the comment to Rule 4.2 may survive the termination of the employment relationship.” “However, the committee concluded that a lawyer may communicate about the subject of the representation with an unrepresented former employee of a corporate party, without consent of the corporation’s lawyer, as long as the investigating lawyer was careful not to induce the former employee to violate any attorney-client privilege and ‘punctiliously’ complied with the requirements of Rule 4.3 of the Rules of Professional Conduct.” Accordingly, the court said, absent a violation of the safeguards set forth by the ethics opinions, the court has no authority to preclude Wein’s attorney’s ex parte communications with former employees of the hospital.

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