Communicating with Employee of Adverse Organization in a Criminal Investigation
Opinion rules that a government lawyer working on a fraud investigation may instruct an investigator to interview employees of the target organization provided the investigator does not interview an employee who participates in the legal representation of the organization or an officer or manager of the organization who has the authority to speak for and bind the organization.
The Medicaid Investigations Unit of the North Carolina Department of Justice investigates Medicaid fraud by medical providers. Attorney A, an assistant attorney general, is assigned to the unit and provides advice to unit investigators and auditors.
Corporation is a provider of medical services to Medicaid recipients ("patients") who reside in group homes. Corporation owns several group homes. The staff of Corporation consists of a president, several directors of various areas, several coordinators, and billing, clerical, and secretarial staff. Each group home has a manager (called a "house manager") and six direct care aides (called "adaptive behavior trainers"). The house manager supervises the aides in the group home and sees that the policies of the corporation are followed. The aides provide direct care to the Medicaid patients. Neither the house managers nor the aides have the authority to establish policy for Corporation.
The Medicaid Investigations Unit is investigating an allegation that Corporation submitted claims to Medicaid for health care services that were never rendered. A unit investigator has interviewed former employees who state that they completed Medicaid claims for Corporation indicating that services were provided to patients when, in fact, no services were provided. There is no evidence that the employees obtained any direct monetary benefit from this activity other than the retention of their jobs. Former aides say that they were following orders from the house managers. Former house managers state that they were following orders from their superiors. Some former employees state that corporate officers or directors told employees to complete the false documentation or face termination from employment.
Attorney C, the lawyer for Corporation, informed Attorney A that he represents Corporation in all matters relative to the Medicaid fraud investigation.
The fraud investigator wants to interview the current house managers and aides, without notice and outside the presence of Attorney C, to ask them whether they falsified records, whether they saw others falsify records, and whether they or others were ordered by supervisors to falsify records. The investigator will take the following steps before each such interview: (1) identify himself, (2) state that he is investigating possible criminal violations, (3) not interview any employee who participated substantially in the legal representation of Corporation, and (4) not elicit privileged communications between Corporation and Attorney C.
May Attorney A direct the investigator to proceed with informal interviews of the house managers and aides without the consent of Attorney C?
Rule 4.2 of the Revised Rules of Professional Conduct prohibits communication about a client's case with another person who is represented in the matter unless the other lawyer consents or the communication is authorized by law. This prohibition extends to persons acting under the direction and control of a lawyer including investigators. Rule 5.3.
When the opposing party is an organization that is represented by counsel, the prohibition on informal communications applies to some employees and not to others. The Revised Rules encourage efficient, cost-effective informal discovery by prohibiting frivolous claims and defenses as well as the obstruction of another party's access to relevant evidence. Rules 3.1 and 3.4(f).
Comment  to the Rule 4.2 provides:
After a lawyer for another person or entity has been notified that an organization is represented by counsel in a particular matter, this rule would prohibit communications by the lawyer concerning the matter with persons having managerial responsibility on behalf of the organization and with any other person whose act or omission in connection with the matter 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.
Examination of the public policy behind the rule sheds light on the comment. The "anti-contact rule," notes the ABA Committee on Ethics and Professional Responsibility in Formal Opinion 95-396 (1995), "provide[s] protection of the represented person against overreaching by adverse counsel, safeguard[s] the client-lawyer relationship from interference by adverse counsel, and reduce[s] the likelihood that clients will disclose privileged or other information that might harm their interests." In the context of the represented organization, these goals are furthered if informal communications with a managerial employee are prohibited when the employee's level of authority is such that the employee may participate in the representative relationship with the corporate lawyer or may be privy to privileged attorney-client communications. For example, 97 Formal Ethics Opinion 2 prohibits informal communications with an adjuster for an insurance company because an insurance adjuster is "privy to privileged communications with the legal counsel for the company and is generally involved in substantive conversations with the organization's lawyer regarding the representation of the organization."
Informal communication is also prohibited with an employee whose statement may constitute an admission on the part of the organization. This does not mean that informal communication is prohibited with any employee who may make a damaging statement about the corporation that would be admissible in evidence. Rather, the prohibition is limited to informal communications with employees who have the authority to speak for and bind the corporation. See RPC 67 (interpreting Rule 7.4 of the superseded (1985) Rules of Professional Conduct; opinion prohibits informal communications with corporate employees with managerial responsibility who are authorized to speak for the corporation).
The comment to Rule 4.2 also mentions a prohibition on informal communications with any person "whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability…." An acknowledged example of such a person is the employee who is involved in an automobile accident while driving the company truck. It is assumed that the interests of the organization and the tortfeasor-employee are sufficiently aligned to place the tortfeasor-employee within the protection of the anti-contact rule. In the instant inquiry, however, Attorney A may instruct the investigator to ask the house managers and aides whether they saw others falsify records and whether they were asked or instructed by superiors to falsify records.