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Keywords

contractplaintifflawyercorporation
contractplaintiffdefendantlitigationattorneylawyertrialmotioncorporation

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Niesig v. Team I, 76 N.Y.2d 363, 558 N.E.2d 1030, 559 N.Y.S.2d 493, 59 USLW 2041

Facts

The plaintiff was injured in a work-related accident while employed by DeTrae Enterprises, Inc. He fell from scaffolding at a construction site managed by J.M. Frederick, the general contractor, and Team I, the property owner. Following the accident, the plaintiff sought to interview DeTrae's employees who witnessed the incident, arguing that they were not managerial employees and thus not covered by the disciplinary rule prohibiting direct communication with represented parties. DeTrae opposed this request, leading to the legal dispute.

As alleged in the complaint, plaintiff was injured when he fell from scaffolding at a building construction site. At the time of the accident he was employed by DeTrae Enterprises, Inc.; defendant J.M. Frederick was the general contractor, and defendant Team I the property owner.

Issue

Are the employees of a corporate party considered 'parties' under Disciplinary Rule 7–104(A)(1), which prohibits a lawyer from communicating directly with a party known to have counsel?

The trial court and the Appellate Division both answered that an employee of a counseled corporate party in litigation is by definition also a 'party' within the rule, and prohibited the interviews.

Rule

Disciplinary Rule 7–104(A)(1) prohibits a lawyer from communicating with a party known to be represented by counsel unless the lawyer has prior consent or is authorized by law to do so.

DR 7–104(A)(1) reads: 'During the course of [the] representation of a client a lawyer shall not * * * [c]ommunicate or cause another to communicate with a party [the lawyer] knows to be represented by a lawyer in that matter unless [the lawyer] has the prior consent of the lawyer representing such other party or is authorized by law to do so.'

Analysis

The court analyzed the application of the disciplinary rule to corporate employees, concluding that the definition of 'party' should include employees whose actions are binding on the corporation or who implement the advice of counsel. The court found that the Appellate Division's blanket prohibition on ex parte interviews was too broad and that allowing interviews with non-managerial employees would not undermine the rule's purpose.

The Appellate Division concluded, for theoretical as well as practical reasons, that current employees of a corporate defendant in litigation 'are presumptively within the scope of the representation afforded by the attorneys who appeared [in the litigation] on behalf of that corporation.'

Conclusion

The court modified the Appellate Division's order to allow the plaintiff's counsel to conduct ex parte interviews with current employees of DeTrae Enterprises, affirming the decision as modified.

Accordingly, the order of the Appellate Division should be modified, without costs, by reversing so much of the Appellate Division order as denied plaintiff's motion to permit ex parte interviews of current DeTrae employees and, as so modified, the Appellate Division order should be affirmed and the certified question answered in the negative.

Who won?

The plaintiff prevailed in the case because the court allowed him to conduct ex parte interviews with current employees, finding that the disciplinary rule did not apply to non-managerial employees who were witnesses to the accident.

The court fully recognizes that, as the Appellate Division observed, every rule short of the absolute poses practical difficulties as to where to draw the line, and leaves some uncertainty as to which employees fall on either side of it.

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