An attorney representing a party engaged in litigation has requested guidance regarding communication with the non-lawyer agent for an opposing party. The agent has contacted the attorney to discuss the conduct of the litigation by counsel for the agent's principal.
The propriety of an attorney's discussions with the agent of a represented adverse party is addressed by Rule 4.2 of the Rules of Professional Conduct. The Rule provides:
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.
Assuming counsel for the adverse party has not consented to the communication, the dispositive issue in this case is the nature of the relationship between the agent and his principal. Although Rule 4.2 would clearly preclude discussions regarding the subject cf the litigation with the represented adverse party himself, communication with his agent may be permissible depending upon the scope and extent of the agency.
The Comment to Rule 4.2 examines the analogous situation of communications with persons connected with represented organizations. The Comment concludes that "this Rule prohibits communications... [with any]... person whose act or omission in connection with [the matter in representation] may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.1
Further direction is given by Bolus v. United Penn Bank, 325 A.2d 1215 (Pa. Super. 1987) which articulates the four grounds upon which a principal is bound by a particular act of his agent: (1) the agent had express authority directly granted by the principal to bind the principal as to certain matters; (2) the agent had implied authority to bind the principal to those acts that are necessary, proper and usual in exercise of the agent's express authority; (3) the agent had apparent authority, i.e. authority that the principal had by words or conduct held the alleged agent out as having; or, (4) the agent had authority that the principal is estopped to deny. Id.2
In the present case, if the agent is acting with the express, implied or apparent authority of his principal, the lawyer should not communicate with the agent without opposing counsel's approval. It is irrelevant that the agent, rather than the lawyer, initiated the contact. The purpose of the rule is not only to protect adverse parties, but opposing counsel as well. See Hazard and Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, 434-38 (1987). If the nature of the agency relationship is uncertain, the attorney should obtain the consent of opposing counsel for the principal prior to engaging in any discussion with the agent regarding the subject of the representation.
1. A statement by the agent in the present case may constitute an admission of the principal if the principal authorized it or if agent made the statement within the scope of the agency during the existence of the relationship. See Federal Rules of Evidence 801(d)(2)(C), (D).
2. The nature of the relationship between the agent and his principal can also be examined from the perspective of federal law. For example, Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that "officers, directors and managing agents" of an organization may be designated to testify on its behalf. Factors to consider in determining whether an individual is a "managing agent" include: 1. whether the individual is invested with general powers allowing him to exercise judgment and discretion in the employer's matters; 2. whether the individual can be relied upon to give testimony, at his employer's request, in response to the demand of the examining party; 3. whether any persons are employed by the employer in positions of higher authority than the individual designated in the area in which information is sought by the examination; 4. the general responsibilities of the individual respecting the matters involved in the litigation; and, 5. whether the individual can be expected to identify with the interests of his employer See, e.g., Sugarhill Records Ltd. v. Motown Record Corporation, 105 F.R.D. 166, 170 (S.D.N.Y. 1985).