You have requested an opinion from the Committee on the following facts. You represent a third year law student who was suspended form law school in 1995 and subsequently sued the University, the University's law school, and the dean of the law school. Your client has applied to sit for the Pennsylvania Bar examination in July 1997 and wants you to send copies of an amended complaint filed against the University, the law school, and the dean to various law professors at the University purportedly on the grounds that your client wants to inform the professors about the facts he is alleging in the amended complaint. Your client has also requested that you communicate with the acting dean of the law school to discuss with him what information may be sent by the school to the Board of Law Examiners.
Pennsylvania Rule of Professional Conduct 4.2, Communications with Person Represented by Counsel, provides that:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so. "
First, the Committee notes that rule 4.2 does not distinguish between types of communication, nor does it appear to exempt the type of communication with employees that your client is contemplating. Accordingly, while the amended complaint appears to be a unilateral communication with no response expected or required, the act still constitutes a "communication" for the purposes of Rule 4.2.
Based on the facts you have provided, the Committee is unaware of any authorization by opposing counsel or in law, allowing you to communicate in the proposed fashion with either the professors, who are employees of the defendant law school or the acting dean of the law school. As such, the Committee focuses on whether your client's proposed communication is within the subject matter of the representation and if so, whether any response may constitute an admission on behalf of the defendants.
Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility opinion 90-142, is a comprehensive opinion that addresses the ethical propriety of communications with employees of organizational, as opposed to individual defendants. The opinion concludes that,
"1. ...a lawyer shall not conduct ex parte communications about the matter of representation with:
a. present managerial employees of an opposing party, and with any other employee whose acts or omissions may be imputed to the corporation for purposes of civil or criminal liability.
b. present employees of an opposing party whose statements may constitute admissions on the part of the corporation..."
The Committee finds Opinion 90-142 instructive. Even assuming that the law professors (employees) are not in managerial positions at either the University or the law school, any acts or statements by them in response to the amended complaint might constitute an admission on the part of the law school. Law professors, unlike typical non-managerial employees, likely will be considered sophisticated enough to understand the ramifications of their comments, especially if they have any connection to the subject of the amended complaint. These considerations are important for you in deciding if your proposed actions comport with the guidelines in Opinion 90-142.
The Committee also points out that as the Comment to Rule 4.2 indicates, communications which are outside the subject of the representation or independently justifiable are not prohibited. In this regard the Committee draws your attention to ABA Formal Opinion 95-396 (July 28, 1995), which holds that general counsel for an organizational defendant can not assert a blanket representation of all organizational employees thereby prohibiting communication with them. Nevertheless a concern with the communications you propose is that they relate directly to the subject matter of the representation and, whether intended or not, may elicit communication from either the professors or the acting dean, which later might be considered admissions by the defendants.
The analysis as regards the contact with the acting dean is more simple. This would clearly be an ex parte communication with a managerial employee and would violate Rule 4.2. The acting dean, in his decision- making capacity, may make statements that can be imputed to the defendant and therefore the contact as proposed violates the Rule.