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THE PARAMETERS OF MODEL RULE 3.4(f)’S EXCEPTION FOR A CLIENT’S EMPLOYEES: MAY A LAWYER ETHICALLY THREATEN A CLIENT’S EMPLOYEE WITH DISCHARGE FOR VOLUNTARILY GIVING INFORMATION TO AN OPPOSING PARTY?
Ernest F. Lidge, III
Abstract
In our justice system, there is an inherent tension between policies favoring granting parties informal access to information and the right of organizational employers to exercise some control over the flow of information from their employees. Model Rule 3.4(f) of the American Bar Association’s Model Rules of Professional Conduct balances these interests. The Rule bars lawyers from requesting “a person other than a client to refrain from giving information to another party unless (1) the person is a relative or an employee or other agent of a client and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”
Rule 3.4(f) promotes the policy favoring informal access to information by barring lawyers, in most circumstances, from requesting persons to refrain from communicating with opposing parties. However, the Rule’s exception for employees ensures fairness to organizations by allowing an organization’s lawyer to ask a client’s employees to refrain from voluntarily giving information to opposing parties, thereby requiring opposing attorneys to use formal means of obtaining information such as depositions, interrogatories, and testimony at trial.
This Article addresses a question left open by Rule 3.4(f). Assume that a lawyer reasonably believes that the interests of a client’s employee will not be adversely affected if the employee refrains from voluntarily giving information to an opposing party. Under these circumstances, the Rule would permit the lawyer to ask the employee to not informally communicate with the opposing party. May the organization’s lawyer, with the client’s permission, go a step further and threaten the employee with discharge if the employee voluntarily gives information to the opposing party? After discussing the policies behind Rule 3.4(f) and an employee’s duty of loyalty to his employer, this Article concludes that if the employee’s discharge would violate other law, then the attorney may not ethically threaten the employee with discharge. If the employee’s discharge would not violate other law, this Article concludes that the organization’s lawyer may ethically order the employee, under threat of discharge, to refrain from voluntarily giving information to an opposing party.”