Witnesses in the Making: Opposing Counsel Communicating to Employees

Navigating a workplace incident can be a company’s nightmare. Claims of workplace injury, harassment, hostile work environment, OSHA violations, or the like put employers on pause as to the manner of properly handling legal proceedings. This is compounded when opposing attorneys interview company employees about the workplace incident without the presence and/or permission from the company’s counsel to interview such employees (commonly referred to as ex parte communications).

Ex parte communications can result in more than a few harmless comments. The interviewing attorneys may call upon these employees as liability witnesses at trial—often on cross examination. Under Georgia agency law, the statements and actions of employees regarding incidents for which an employer may be liable can be attributed to the employer. And, statements made by these employees are admissible at trial if it concerns a matter within the scope of the employment and is made during the time of employment. Thus, employees may make statements during ex parte communications with attorneys without the presence of defense counsel that could potentially be damaging to the company in a subsequent trial.          

Know the Ethical Violations of Ex Parte Communications

Lawyers must subscribe to ethical standards, and pursuant to Georgia Rule of Professional Conduct 4.2(a), “[a] lawyer who is representing a client in a matter 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 to do so by law or court order.” Comment 4A to this rule clarifies that a lawyer cannot have ex parte communications with:

  • Officers, directors, managers, and supervisors.
  • Employees who have the authority to obligate the organization with respect to the matter.
  • Employees who regularly consult with the organization’s lawyer concerning the matter.
  • Employees whose act or omission in connection with the matter may be attributed to the organization for purposes of civil or criminal liability.

The above parties are protected as clients under the counsel of the company. It is a violation of ethics, therefore, for an attorney to have ex parte communications with a company’s current employees regarding a dispute without the presence and/or permission from defense counsel if the employee falls within one of these categories.

There Are Always Exceptions

1.    Georgia Rule of Professional Conduct 4.2 requires that opposing counsel must know that the employer is represented by counsel at the time of the communications. Documentation will prove knowledge! Thus, a company should have its counsel send a letter of representation to the opposing attorney immediately upon receipt of information that the complainant has retained representation. Without such a letter, the opposing attorney will likely be able to participate in ex parte communications with employees by disclaiming knowledge of representation of the company.

2.    An attorney is allowed to have ex parte communications with employees who do not fit the descriptions listed in Comment 4A including:

  • Employees who do not hold positions with responsibilities related to directing, managing, or supervising;
  • Employees whose acts or omissions cannot be ascribed to the company; and
  • Former employees.

An employer’s counsel should, therefore, encourage employees to refer any questions related to incidents to counsel to prevent such ex parte communications.

3.    Georgia case law allows an attorney to call co-workers of the plaintiff for cross-examination in suits against a company. In order to prevent this, defense counsel should argue to the trial judge that if the opposing attorney can interview a party’s co-workers without the presence and/or permission from defense counsel, then the attorney should not also be permitted to cross-examine the employee.

What To Do If Ex Parte Communication Has Taken Place

It is critical for an employer to protect itself in that event that ex parte communications occur between an employee and opposing counsel. If such communications do transpire, an employer and/or its counsel should do the following:

  • Confirm with the employee-witness the timing and substance of the communications.
  • Depose any investigators that have conducted interviews in the case.
  • Request copies of all interview statements with witnesses in discovery.
  • Require opposing attorney early in litigation to seek a court order prior to speaking directly with employees.
  • Seek the appropriate remedy based on the facts of your case.

What Remedies Can an Employer Seek?

The primary remedy for a company in this situation is the disqualification of the offending opposing counsel. This is quite helpful when the case is nearing trial because another attorney (who is likely less familiar with the case) must assume the responsibilities of the case from the offending counsel. Additionally, other remedies are available. A court may exclude the employee-witness with whom counsel had ex parte communications, a court may issue sanctions, or the attorneys could enter into an agreement to stipulate to a jury instruction that the acts or omissions of the employee-witness with whom the offending counsel had ex parte communications cannot be used for the basis of any liability against the defendant employer. Finally, defense counsel could request a mistrial, but this is rarely granted.

If your company finds itself with a notice of lawsuit or investigation by an attorney for a workplace incident, converse with your lawyer, educate your employees about communication, and make sure opposing counsel has documentation that your company is represented.

ex parte communications

To guarantee you see Hull Barrett’s legal alerts and advice, subscribe to our bi-monthly email newsletter HERE.

Image Credit: baranq/shutterstock.com