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H.B.A. Management, Inc. v. Estate of Schwartz By and Through Schwartz, 693 So.2d 541, 22 Fla. L. Weekly S236, 57 A.L.R.5th 855

Facts

Alex Schwartz, as the personal representative of May Schwartz's estate, filed a lawsuit against Tamarac Convalescent Center, operated by H.B.A. Management, Inc. H.B.A. sought to prevent Schwartz's counsel from contacting its current and former employees and demanded access to any statements or notes obtained from those employees. The trial court sided with H.B.A., citing a previous case, Barfuss v. Diversicare Corp. of America, which restricted such communications. However, the Fourth District disagreed, emphasizing the distinction between current and former employees.

HBA moved to prohibit Schwartz's counsel from contacting Tamarac's current and former employees, and also requested access to all statements and notes that Schwartz's counsel may have previously obtained from those employees.

Issue

Does Florida Rule of Professional Conduct 4–4.2 prohibit ex parte communications between a claimant's attorney and the former employees of a defendant-employer?

At issue is whether Florida Rule of Professional Conduct 4–4.2 prohibits ex parte communications between a claimant's attorney and the former employees of a defendant-employer.

Rule

Florida Rule of Professional Conduct 4–4.2 prohibits attorneys from communicating about the subject of representation with a person known to be represented by another lawyer unless consent is obtained. The rule specifically addresses communications with current employees of an organization.

Rule 4–4.2, titled “Communication with Person Represented by Counsel,” provides in pertinent part: 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.

Analysis

The court analyzed the application of Rule 4–4.2, determining that it was intended to regulate contact with current employees who could bind the organization or whose statements could be considered admissions. The court found that former employees, having severed ties with the organization, do not fall under the rule's prohibitions, as they can no longer speak for or bind the corporation. This interpretation aligns with the opinions of various bar ethics committees and the majority of jurisdictions.

In concluding that rule 4–4.2 does not prohibit ex parte communications with former employees, Florida Bar Professional Ethics Comm. Op. 88–14 (Mar. 7, 1989), the Florida Bar's Committee on Professional Ethics has determined that: Nothing in Rule 4–4.2 or the comment states whether the rule applies to communications with former managers and other former employees.

Conclusion

The Supreme Court of Florida concluded that Rule 4–4.2 does not prohibit ex parte communications with former employees of a defendant-employer, thereby approving the Fourth District's decision and disapproving the conflicting Barfuss ruling.

Accordingly, we approve the decision below, as well as that in Reynoso, and disapprove Barfuss to the extent it is inconsistent herewith.

Who won?

The personal representative, Alex Schwartz, prevailed in the case because the court ruled that the professional conduct rule does not restrict communication with former employees, allowing Schwartz's counsel to engage with them.

The Fourth District, specifically disagreeing with the decision in Barfuss as to contacts with former employees, quashed the trial court's order, relying instead on the reasoning of a Florida Bar committee advisory opinion as to the propriety of contacts with former employees of a defendant-employer.

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