Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May the attorney for a plaintiff properly interview the manager of defendant chamber of commerce without obtaining the consent of its counsel?
Rules 1 and 12 of the Rules of Professional Conductof the State Bar.1
This Committee is asked for its opinion on the following question:
Plaintiff brought suit against the chamber of commerce to recover damages arising as a result of a fall which occurred on the premises of the chamber. The question presented is whether plaintiff's counsel may properly interview the manager of the chamber about the case, without the permission and consent of counsel for the chamber.
Rule 12 of the Rules of Professional Conduct of the State Bar reads as follows:
"A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."
This opinion is predicated upon our understanding that the chamber of commerce in question is not a "public . . . board, committee or body" within the exception mentioned in rule 12 of the Rules of Professional Conduct.
The Canons of Ethics of the American Bar Association are not binding on members of the State Bar of California to the extent that violation thereof is grounds for disciplinary action by the State Bar. They are, nevertheless, "commended to the members of the State Bar." (Rule 1, Rules Prof. Conduct.)
[Former] canons 9 and 13 of the Canons of Ethics of the American Bar Association read as follows:
"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law."
"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."
It is inescapable that a corporation can be represented or act only through individuals. From this it follows that the foregoing rule 12 of the Rules of Professional Conduct and [former] canon 9 of the Canons of Ethics of the American Bar Association must prohibit all direct communication with certain employees or agents of a corporate adversary in the absence of consent by the latter's counsel. The question of who comes within the category of being such corporate employees or agents is a difficult one but, in the case presented, it is the opinion of this Committee that the manager of the Chamber of Commerce in question is so closely identified with its management that communication with him is, in fact, communication with an adverse party in violation of rule 12 of the Rules of Professional Conduct and contrary to [former] canon 9, unless consented to by counsel for the chamber.
For authority bearing on this point, see Drinker, Henry S., Legal Ethics (1953) p. 201.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January l, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III.D.)]
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