noting that Rule 4.4 prohibits counsel from attempting to obtain privileged information from a former employee
How later courts described this case
- noting that Rule 4.4 prohibits counsel from attempting to obtain privileged information from a former employee
- expressing concern for use of Rules of Professional Conduct as substantive basis for a ecause of action
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring.
I fully concur with respect to Part IL. I also concur as to Part I but in doing so would merely add an observation concerning the possible evaluation of Rule 4.2 by our Supreme Court.
I am in total agreement with the majority opinion in that it holds that any result other than that reached would in effect rewrite the Rule itself, I nevertheless share the majority's concern about certain possibilities which would involve disclosure of information protected by an attorney-client privilege. For example, I am troubled by seeming to place an imprimatur upon an ex parte interview with a former employee which obtains privileged information communicated to the defendant's counsel upon a different but related or analogous matter while the interviewee was an employee. Such information may or may not be relevant to the litigation in question but it may nevertheless be the appropriate subject of protection.
Again, however, this is a call best left to our Supreme Court. If and when such consideration is given, the Court may well wish to consider some policy advantages to something other than the all-or-nothing implication of the Rule as written. For instance, rather than requiring a court order to conduct any ex parte conversation with a former employee, the litigant's attorney might be permitted to contact and speak informally with the former employee to learn whether it would be worthwhile to proceed further. Any such informal ex parte statement, however, would not be subject to use for any purpose except as a launching pad for the formal process of taking the former employee's deposition at which the attorney-client privilege and other matters of concern to the employer might be protected. See Curley v. Cumberland Farms, Inc., 134 F.R.D. 77, 93-95 (D.N.J.1991).
Be that as it may, I fully concur in the majority opinion.
ROBB, Judge,
concurring with separate opinion.
I concur with the majority opinion, but write separately to address an issue raised by this case that concerns me: the use of *741 the Rules of Professional Conduct as the substantive basis for a cause of action.
Our Rules of Professional Conduct are prefaced by a preamble which states, in part:
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability, but reference to these rules as evidence of the applicable standard of care is not prohibited. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.
Ind. Rules of Professional Conduct, Preamble, Scope. The Rules of Professional Conduct lack the force and effect of statutes or case law. Trotter v. Nelson, 684 N.E.2d 1150 , 1156 n. 4 (Ind.1997); Kizer v. Davis, 174 Ind.App. 559 , 369 N.E.2d 439, 443 (1977) (noting the same with respect to the Code of Professional Responsibility, which governed the conduct of attorneys until 1987, when the Model Rules were adopted and replaced the Code). Our supreme court has noted that "[the preambles to the Rules of Professional Conduct . make it clear that their provisions do not purport to create or describe any civil liability...." Sanders v. Townsend, 582 N.E.2d 355, 359 (Ind.1991). Rather, they operate "as the rule of law in disciplinary proceedings before the Supreme Court. [They] delineate[] the conduct that will render an attorney subject to censure." Kizer, 369 N.E.2d at 443 .
Recently, however, our supreme court decided the case of Allstate Ins. Co. v. Watson, 747 N.E.2d 545 (Ind.2001). In that case, the court addressed the issue of the trial court's denial of a motion for relief from default judgment. The court held that "a default judgment must be set aside under Indiana Trial Rule 60(B)(B) where, during negotiations, the plaintiff's attorney disregarded a prior assurance to the defendant and obtained a default judgment." Id. at 546 . In so holding, the court referenced a violation of the Rules of Professional Conduct as a means of showing a misrepresentation or misconduct for Trial Rule 60(B) purposes. See id. at 548 . See also Smith v. Johnston, 711 N.E.2d 1259 (Ind.1999) (setting aside a default judgment obtained by the plaintiff's attorney without notifying counsel known to be representing the adverse party because, although the conduct was in technical compliance with the Trial Rules, it was obtained in violation of Rule of Professional Conduct 8.4(d) which states that it is professional misconduct for a lawyer "to engage in conduct that is prejudicial to the administration of justice.").
It seems to me that Watson and Smith have the potential to start us on the fabled slippery slope by encouraging, or at least not foreclosing, the pleading of a violation of the Rules as a substantive claim for liability when the clear mandate of the Rules is otherwise. Can these cases be interpreted to mean that when an attorney is disciplined it makes the underlying lawsuit suspect? It seems to me that this could be where we are heading, and I believe the Rules clearly state that is not their purpose. In neither Watson nor Smith was a violation of the Rules substantively pled as a basis for attorney lia *742 bility; rather, it was pled as a defense to a procedural default. Here, too, the Club has pled a supposed violation of the Rules as a means of defending a summary judgment rather than substantively pleading attorney misconduct under the Rules as a basis for liability, Nonetheless, I am troubled by the implications of referring to the Rules in such a way either at the trial or appellate level.
Notwithstanding my concern over the erogion of the limited seope and purpose of the Rules of Professional Conduct, I believe the communication between Duba-mell's counsel and Lobosco was appropriate and therefore Loboseo's affidavit was properly gathered and the trial court properly denied the Club's motion to strike. I therefore concur in Part I of the majority decision with the caveat that it should not be construed in the future to sanction allowing a substantive claim under the Rules of Professional Conduct in anything other than a disciplinary proceeding. In all other respects, I concur with the majority opin-10n.