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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-4

In a pending action against a hospital, plaintiff's attorney may question an employee of the hospital and physicians practicing medicine at the hospital, without notice to opposing counsel, where the person's questioned are not part of the hospital's management. (31 L.A. Bar Bulletin 267 (1956)).

Opinion No. 234 (April 12, 1956)

NEGOTIATIONS WITH OPPOSING P ART Y--WITNESSES.

Attorney for plaintiff may properly interview as prospective witnesses agent who wrote insurance policy and underwriter employed by defendant corporation without prior notice to, or consent of, defendant's counsel, provided plaintiff's attorney identifies himself to such witnesses and practices no deception upon them.

The Committee is asked for its opinion on the following question:

An action is pending by an individual against an incorporated insurance company on an insurance policy issued by the defendant, for the recovery of sums alleged to be due as benefits under the policy. Possible witnesses at the trial include the defendant's agent, who wrote the policy, and an underwriter who is an employee of the defendant. The question presented is whether it is proper for the attorney for the plaintiff to interview the said agent and employee without first advising and, presumably, securing the consent of counsel for the defendant.

Under certain conditions the Committee is of the opinion that it is proper for plaintiff's attorney to interview the aforesaid persons.

Canon 9 of the American Bar Association's Canons of Professional Ethics states:

"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel."

Rule 12 of the State Bar Rules of Professional Conduct reads substantially the same, but states the exception, implied in Canon 9, for communications with the consent of counsel.

Canon 39, as amended September 30, 1937, reads in part as follows:

"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."

As stated in our Opinion 213, rendered October 22, 1953, "There is no prohibition against interviewing those who are only witnesses for the opposing party (Drinker, p.201). " It has been recognized, however, that Canon 9 imposes some qualification on the broad language "any witness or prospective witness for the opposing side," found in Canon 39. Thus, it has been held that an adverse party, even if a prospective witness, cannot himself be interviewed without the consent of his counsel (A.B.A. Op. 187). Drinker, Legal Ethics, p. 296, cites an unreported opinion of the American Bar Association's Committee, No. 250, to the effect that the mother of an injured minor child is so far identified with it that it is improper for an insurance company to interview her, where the child is represented by counsel.

Before the 1937 Amendment to Canon 39 it read as follows:

"If the ascertainment of truth requires that a lawyer should seek information from one connected with or reputed to be biased in favor of an adverse party, he is not thereby deterred from seeking to ascertain the truth from such person in the interest of his client."

On the strength of this language, which is certainly less explicit than that now found in Canon 39, it was held, in A.B.A. Op. 117, that the attorney for a person injured by falling on the slippery floor of a store could properly interview clerks employed in the store, who were the only witnesses of the accident, provided no deception was practiced on them in obtaining their statements and they were informed that the person interviewing them was the attorney for the claimant. The Committee said: "Canon 9 does not forbid interviews with employees of the opposite party."

It does not appear from the opinion last cited whether the owner of the store was an individual or a corporation. Drinker at page 201, cites Opinion 830 (new number 613 (p. 350)) of the Committee of the Association of the Bar of the City of New York as holding that Canon 9 "probably precludes interviews of managing employees of a corporation having authority to bind it." It is recognized by this Committee that a corporation can be represented only by individuals and that Canon 9 must therefore prohibit oral communication with certain employees or agents or a corporate adversary. The question of how far this protection should be extended is a difficult one, but in the case presented the agent and the underwriter do not appear to the Committee to be so closely identified with management of the insurance company as to be shielded by its status as a party represented by counsel.

Assuming, therefore, that the attorney for the plaintiff in the case presented identifies himself to the defendant's agent and underwriter and practices no deception upon them, it is the opinion of this Committee that there is no impropriety in his interviewing them as prospective witnesses, notwithstanding that he may not have notified or secured the consent of counsel for the defendant.

EDITORS NOTE: See Editor's Note to Opinion No. 213, supra . See also Opinion No. 239.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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