Samuel C. Stretton.

An attorney involved in suing a corporation can speak to former employees, but there are limits.

I sued a corporation and I noted a manager/officer of the corporation no longer is employed. I wish to speak to that person about the facts of the underlying lawsuit I have brought against the corporation. Can I do so without violating Rule of Professional Conduct 4.2?

As any lawyer should know, the Rule of Professional Conduct 4.2 prohibits communication with a person represented by counsel. Under Comment 7 to Rule 4.2, if the corporation or organization is subject to litigation, the constituents of that organization who supervise it, direct, or regularly consult with an organization's lawyer concerning the matter or who in the corporation have authority to bind the organization with respect to issues in the case would be prohibited people and the lawyer could not speak with them. But, the comment also notes as follows: “Consent of the organization's lawyer is not required for communication with a former constituent.”

That means if no longer employed by the corporation then the counsel has a right to speak to the former employee directly. But, there are some limitations. A lawyer, clearly when contacting a former employee, must advise the employee who the lawyer represents. A lawyer cannot mislead the former employee. A lawyer cannot take advantage of the employee. Rules of Professional Conduct, Rules 4.3 and 4.4, would prohibit improper conduct by a lawyer under those circumstances.

Even if the former employee had supervisory or managerial authority, that would not prevent the lawyer from contacting the person who has been terminated or who left the corporation. The underlying rationale is rather straightforward. One cannot speak with a person represented by a lawyer in the matter about the litigation. But, if the employee is terminated and no longer works for the corporation, then the corporation's lawyers no longer represents that individual.

But, as in anything else, lawyers have to be very careful. A problem could arise if the discussion imparted on attorney-client information. If the former employee had been involved or met with the corporate lawyers or discussed attorney-client information or received attorney-client information then that information is off limits. Therefore, when talking to a former employee, assuming the person is willing to communicate, the lawyer must be very careful not to get into attorney-client information. If the lawyer does that could result in potential sanctions, but even more importantly, disqualification of the lawyer because then the lawyer would have confidential information that would be prohibited and which could prejudice the other side.

Also, the lawyer has to be careful not to mislead the former person or take advantage of them because there can be serious discipline imposed under Rules 4.3 and 4.4.

Now under Rule 4.2, employees in corporations who have held managerial positions but are no longer employed can be spoken to. The current Rules of Professional Conduct allow this contact, but there are limits and every lawyer who contacts a former employee should be careful and do a memo as to the extent of the contact, particularly if there is concern about attorney-client information.

It's time to reconsider rule about Client Security Fund reimbursements.

I am lawyer who was suspended several years ago. There was misuse of funds and the Client Security Fund paid the client back. I want to apply for readmission, but I am barred unless I pay the Client Security Fund back and the cost of the prosecution. What can I do?

The question is a good one and it raises issues that have been a concern for a number of years. In Pennsylvania, if a lawyer is suspended and the Client Security Fund is owed money as a result of the lawyer's misconduct, a lawyer cannot file a Petition for Reinstatement until the Client Security Fund is reimbursed. A payment plan doesn't cut it. The lawyer has to reimburse the Client Security Fund in full to be allowed to file a Petition for Reinstatement.

The problem with that is that the Client Security Fund has a 10 percent annual interest that's added onto the amount at issue. This is an extremely high interest and ought to have been reconsidered by the Client Security Fund years ago. As a result, for a lawyer, the money owed the Client Security Fund is often much more than the amount that was originally misused.

The theory behind this preclusion of reinstatement is not a bad one. The theory behind it is that the Client Security Fund is made up of monies paid by all the lawyers as part of their annual assessment. The independence of the bar requires maintaining this fund to reimburse clients up to the $75,000 limit who have been cheated or whose lawyer has converted funds or taken their funds. Therefore, a lawyer should not get reinstated unless he reimburses the fund for the amount in question.

But, in practice this is an awful hardship for many suspended or disbarred lawyers. Normally, if a lawyer is suspended or disbarred for misuse of client funds, the lawyer is usually financially in bad shape and without funds. Usually there is a sad story behind the misconduct. It is rare that someone just steals money for the sake of stealing it, although that does happen. Normally, a lawyer got caught in an economic bind and misuses funds to try to overcome the period of economic distress with the intent to pay it back. The lawyer then is not able to pay it back. Obviously, that's no defense, but the end result is the lawyer now is suspended or disbarred has no money and no hopes of ever being reinstated short of winning the lottery because of the money owed the Client Security Fund.

For most lawyers who are suspended or disbarred, the economic circumstances for them are bleak. There are very few jobs they can work at or get paid at any reasonable rate. Although the lawyers are allowed to act as paralegals in a limited fashion under Pennsylvania Rules of Disciplinary Enforcement, Rule 217(j), from a practical standpoint most lawyers aren't going to hire a suspended or disbarred lawyer unless they know them well. Even then, the normal rate of pay and reimbursement is usually very low.

Therefore, assuming someone has paid their price for the misconduct and changed and reformed during the years of suspension or disbarment, it seems very unfair to preclude the person from coming back just because they don't have the monies to reimbursement the Client Security Fund. If a reasonable payment plan was allowed, that would satisfy the situation. But, currently, the payment plan has to be completed before the lawyer is going to be allowed to file the reinstatement petition.

This preclusion appears to create almost an equal protection argument. If one is rich or has access to wealth, then that lawyer can apply and come back because they can pay and reimburse the Client Security Fund. If a lawyer is economically in distress, they can't because they are too poor to reimburse the fund. That does not seem to be a fair way to decide who's coming back and who is not coming back. This writer remembers representing a lawyer who converted monies from over 30 or 40 clients of almost three-quarters of a million dollars. That lawyer was reinstated in six or seven years because a wealthy parent reimbursed all the clients. This writer knows other attorneys who have misused $15,000 or $20,000 who are not able to reapply because of lack of funds to reimburse.

Short of some lawyer ultimately filing a suit alleging this rule is a constitutional violation, it appears time for the Client Security Fund and perhaps the Pennsylvania Supreme Court to change the rules. The first change would be to remove the 10-percent interest. That is extremely high and ought to be greatly reduced. Second, the rules should allow a payment plan that the lawyer is able to pay with the understanding that the lawyer has to be responsible at some point, particularly once they are reinstated, to pay the balance in full. That will allow a lawyer to accept responsibility and make payments, but still apply for reinstatement as opposed to having to wait to reapply with the hope of an economic miracle.

The other concern is the cost of prosecution. When a lawyer is disciplined, they are responsible to paying the cost of the Office of Disciplinary Counsel. When one goes through a full trial, often times the costs are $10,000 to $15,000, which again is a prohibitive amount if the lawyer is in economic distress. A great part of the cost is the copying of the transcripts for all the Disciplinary Board members and the Supreme Court where the copying costs must be about a dollar a page or somewhere in that range. That results in thousands of dollars in copying cost bills. Again, there is a good reason behind this rule, because the Office of Disciplinary Counsel is funded by lawyers' contributions and this is a way to recoup some of the monies. On the other hand, this creates an unfair situation for lawyers who have no economic strength or wealth and can preclude their reinstatement. Oftentimes, the Disciplinary Board will accept a payment plan, unlike the Client Security Fund. But, it's still a difficult situation for many lawyers. The concept is good, but perhaps the copying costs ought to be reconsidered and greatly reduced. This type of change at some point ought to be reviewed and considered by the Disciplinary Board or the Supreme Court.

The practice of law is a great privilege, but if a lawyer has acted badly resulting in suspension and disbarment but then changed and reformed, the lawyer should not be penalized in terms of seeking reinstatement just because they don't have funds or monies readily available. It's time for reconsideration of these rules.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.