Panuelo v Pohnpei [1986] FMSC 11; 2 FSM Intrm. 225 (Pon. 1986) (8 August 1986)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Panuelo v. Pohnpei state [1986] FMSC 11; 2 FSM Intrm. 225 (Pon. 1986)

[2FSM Intrm.225]

YASUO PANUELO AND BRIGIDA PANUELO,
Plaintiffs,

vs.

STATE OF POHNPEI AND THE
FEDERATED STATES OF MICRONESIA,
Defendants.

CIVIL ACTION NO. 1985-027

OPINION
Before Edward C. King
Chief Justice
August 8, 1986

[2 FSM Intrm.226]

APPEARANCES:

For the Plaintiffs: R. Barrie Michelsen

Attorney-at-Law

Ramp & Michelsen

P.O. Box 1480

Pohnpei, FSM 96941

For the Defendant: Thomas M. Tarpley

(State of Pohnpei) Special Counsel

State Attorney's Office

Pohnpei, FSM 96941

For the Defendant: Jack Warndof

(Federated States of Chief of Litigation

Micronesia) Office of the Attorney General

Pohnpei, FSM 96941

* * * *

HEADNOTES

Attorney, Trial Counselor and Client
The purpose of Rule 4.2 of the Model Rules of Professional Conduct as it applies to organizations is not to pull a veil of partial confidentiality around facts, or even people who have knowledge of the matter in litigation by virtue of their close relationship with a party, but to protect against intrusions by other attorneys upon an existing attorney-client relationship. Panuelo v. Pohnpei (II), [1986] FMSC 11; 2 FSM Intrm. 225, 232 (Pon. 1986).

Attorney, Trial Counselor and Client
The prohibition in Rule 4.2 of the Model Rules of Professional Conduct against communications with a client organization represented by another attorney applies only to communications with an individual whose interests at the time of the proposed communication are so linked and aligned with the organization that one may be considered the alter ego of the other concerning the matter in representation. Panuelo v. Pohnpei (II), [1986] FMSC 11; 2 FSM Intrm. 225, 232 (Pon. 1986).

Attorney, Trial Counselor and Client
The comment to Rule 4.2 of the Model Rules of Professional Conduct was written with the understanding or assumption that it could only affect people who, at the time of the proposed communication, have a working relationship
with the organization. Panuelo v. Pohnpei (II), [1986] FMSC 11; 2 FSM Intrm. 225, 233 (Pon. 1986).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice,

The issue presented by plaintiffs' motion for protective order is

[2 FSM Intrm.227]

whether a former doctor at the Pohnpei Hospital, who played a role in the events leading to this litigation, should be considered part of the Pohnpei government for purposes of Model Rule of Professional Conduct 4.2. That ethical rule prevents an attorney from communicating directly with a party who is represented by another attorney concerning the subject of that representation.

I conclude that the doctor does not have a sufficient continuing relationship with the state to justify a finding that it would be an intrusion on the attorney-client relationship between Pohnpei and its counsel for opposing counsel to contact her directly.

Background

In the underlying lawsuit, plaintiffs Yasuo and Brigida Panuelo claim that the State of Pohnpei and the Federated States of Micronesia wrongfully denied proper treatment to their daughter, Elisabeth Panuelo, and that Elisabeth died as a result. The allegations are described more fully in an earlier opinion in this case. See Panuelo v. Pohnpei(I), [1986] FMSC 2; 2 FSM Intrm. 150 (Pon. 1986).

Dr. Claire Wilson, a United States Public Health Services doctor, was working at the Pohnpei Hospital and was Elisabeth Panuelo's attending physician during the events which led to the litigation. She no longer practices medicine here and has moved to Los Angeles.

The Panuelos' counsel, R. Barrie Michelsen, has obtained Dr. Wilson's current address but has been warned by the State's counsel that Pohnpei would object to his contacting Wilson by any means other than through a sworn deposition or written interrogatories. The State's position is that any such contact would be unethical, in violation of Rule 4.2 of the Model Rules of Professional Conduct, which are applicable here by virtue of Paragraph VII of this Court's Rules for Admission to Practice.

Legal Analysis

A. General Principles

A basic goal of the Rules of Civil Procedure,1 the Rules of Evidence2

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and the Model Rules of Professional Conduct3 is to enable parties to obtain and present in an efficient and inexpensive manner all information relevant to the dispute so that the court may render a just result in accordance with the law.

Some exceptions have been established to uphold certain values thought to be of sufficient importance to warrant departure from the most direct path to justice. For example, in order to discourage possible torture, manipulation and degradation of accused persons, courts refuse to accept an involuntary confession as evidence. FSM Const. art. IV, § 7; FSM v. Jonathan, [1986] FMSC 5; 2 FSM Intrm. 189 (Kos. 1986). Many jurisdictions hold that, because of the value placed on marital harmony and integrity, a witness may not be compelled to testify against his or her spouse. Wigmore, Evidence § 2332 (McNaughton rev. 1961).

Exceptions of this sort exist to promote or uphold identified values. Yet, they increase the difficulty and expense of finding relevant information c)r, sometimes, make the truth altogether inaccessible. Unnecessary restrictions placed upon the right of an attorney to contact potential witnesses

not only impair the constitutional right to effective assistance of counsel but are contrary to time-honored and decision-honored principles, namely, that counsel for all parties have a right to interview an adverse party's witnesses (the witness willing) in private, without the presence or consent of opposing counsel and without a transcript being made.

IBM Corp. v. Edelstein, [1975] USCA2 695; 526 F.2d 37, 42 (2d Cir. 1975). Exceptions to the normal commitment to efficient justice, then, should be applied cautiously, only as necessary to enforce the values they are established to uphold.

In this case, an expeditious way for Attorney Michelsen to determine whether Dr. Wilson has relevant information which she is willing to provide would be to call or write her informally. The State says he may not do this but instead must restrict his communications with her to formal discovery procedures. An oral deposition under FSM Civ. R. 30 would be expensive, requiring that counsel or deponent travel more than 4,000 miles. Deposition by written questions would also be a time-consuming effort requiring advance

[2 FSM Intrm.229]

arrangements. Both procedures, calling for sworn and recorded responses, could hamper the Panuelos' access to information.

[T]here is little relation between [an interview and the taking of a deposition]. A lawyer talks to a witness to ascertain what, if any, information the witness may have relevant to his theory of the case, and to explore the witness' knowledge, memory and opinion--frequently in light of information counsel may have developed from other sources. This is part of an attorney's so-called work product. It is the common experience of counsel at the trial bar that a potential witness, upon reflection, will often change, modify or expand upon his original statement and that a second or third interview will be productive of greater accuracy. Little wonder then that a witness being interviewed...would not wish to have his initial thoughts taken down by a court reporter as if it were sworn testimony in court.

IBM v. Edelstein, 526 F.2d at 41.

The question then is whether there are values, reflected in our rules, the protection of which warrant relegating counsel for plaintiffs to the more expensive and time-consuming and perhaps less satisfactory procedures provided for in Rules 30 and 31 of our Rules of Civil Procedure.4

B. Rule 4.2

The exception to which the State of Pohnpei points as grounds for preventing informal communications between counsel for the Panuelos and Dr. Wilson is set out in Rule 4.2 of the Model Rules of Professional Conduct:

In representing a client, a lawyer shall not communicate about the subject of 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.

This exception "is intended to preserve the integrity of the client-lawyer relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer." ABA/BNA, Lawyers'

[2 FSM Intrm.230]

Manual on Professional Conduct 71:303 (1984).5 Other lawyers may not bypass a party's attorney to wrest evidentiary admissions or settlements from the party directly, or to solicit legal business. Wright by Wright v. Group Health Hosp., 691 P.2d 564, 567 (Wash. 1984).

C. An organization as party

Rule 4.2 does not define the word "party" but the comment makes clear that organizations, e.g., governments and corporations, fall within that term. The comment to Rule 4.2 says:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that 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. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.

Three groups are identified as falling within the prohibition against communications with an organizational party; (1) persons having managerial responsibility; (2) persons whose statements may constitute admissions on the part of the organization; (3) persons whose acts or omissions in connection with the matter in representation may be imputed to the organization.

Plaintiffs contend that, because Dr. Wilson was hired and paid by the United States Public Health Service, she was never an employee of the Pohnpei State Government and may never have been part of the government for Rule 4.2 purposes. The former relationship between Dr. Wilson and the State for tort, agency and evidentiary law purposes may become important in this case and will be determined on the basis of the specific facts presented.

[2 FSM Intrm.231]

The record in its present state, however, suggests that she may have fit within all three categories mentioned in the comment to Rule 4.2. She had managerial responsibility in that she was a member of the referral committee which decided to what extent health care treatment for Elisabeth Panuelo should be funded. She was a physician at the Pohnpei Hospital at the time of the events in question here so was undoubtedly responsible for explaining the government's health care policies to patients and their families. Statements made by her in exercise of this speaking authority presumably could constitute admissions of the government. Finally, although the pleadings are not clear, it appears that the plaintiffs may be attempting to assert that the government is liable because of an act or omission of Dr. Wilson.

The record is plainly sufficient to support an inference that Wilson was part of the government for Rule 4.2 purposes while she was serving in Pohnpei.

D. Former agents or employees

The question here, however, is whether, now that her former working relationship with the state has ended, Dr. Wilson should be considered part of the government for purposes of Rule 4.2 communications concerning events which occurred while she was working in Pohnpei and which are at issue in this case.

The State contends that Dr. Wilson's acts while she served as a physician in Pohnpei might possibly be imputed to the State and that she should therefore be regarded as part of the State for Rule 4.2 purposes. The wording of the comment seems to support the state's position so I have given that argument careful thought. Yet several factors have persuaded me that the State's interpretation should not be accepted.

First, the State's reading would radically extend the sweep of this longstanding ethical rule.6 Counsel has not directed the Court's attention to, nor has our own research located any instance of the earlier versions being used by an organizational party to prevent opposing counsel from contacting a former agent or employee with whom the organization no longer

[2 FSM Intrm.232]

maintained any working relationship.

The language in Rule 4.2 seems substantially similar to the earlier versions. The Lawyers' Manual on Professional Conduct says that Rule 4.2 "does not differ significantly" from its predecessor and that "[t]he guidance provided by the comment concerning communicating with officers and employees of an organization appears to be a restatement of the principles and rules already in effect." ABA/BNA, supra, 71:302. I have found no commentary anywhere suggesting that the Model Rules were intended to alter this ethical rule as it was applied under the Code of Professional Responsibility. Under these circumstances it seems extremely unlikely that Rule 4.2 was intended to produce the unprecedented result urged by the state.

Secondly, the State's approach would result in "third category persons" being treated in a way that is dramatically different from employees in the first two categories. Once an officer or employee who formerly had speaking authority or managerial responsibility has severed his or her relationship with the organization, that person is outside the coverage of Rule 4.2. Wright by Wright, 691 P.2d at 569. This holds true even as to the organization's litigation concerning events which occurred while that person did have managerial authority. ABA/BNA, supra, 71:315, citing State Bar of Wisconsin, opinion E-82-10 (Wisconsin Bar Bulletin, Dec. 1982).

Third, the State's proposed interpretation loses sight of the purpose of this ethical rule. An individual's attorney may invoke Rule 4.2 only to prevent opposing counsel from communicating with the client. The individual client's friends, agents, employees or witnesses, even those in whom the individual has confided, may be interviewed by opposing counsel without consent of the individual's attorney. Edelstein[1975] USCA2 695; , 526 F.2d 37 (2d Cir. 1975); In re FMC Corp., 430 F. Supp. 1108 (D. W. Va. 1977); ABA/BNA 71:303, R. Wise, Legal Ethics 294 (2d. ed. 1970) (citing opinion 117 of ABA committee on Professional Ethics). This confirms that the purpose of Rule 4.2 is not to pull a veil of partial confidentiality around facts, or even people who have knowledge of the matter in litigation by virtue of their close relationship with a party, but to protect against intrusions by other attorneys upon an existing attorney-client relationship. Wright by Wright, 691 P.2d at 569.

Protection for organizations is intended to mirror that provided for individual litigants. It follows that the Rule is not designed to prohibit unapproved communications with all people who work or have worked with the organization and by virtue of that fact have knowledge about the matter In litigation. I conclude that the prohibition applies only to communications with an individual whose interests, at the time of the proposed communication, are so linked and aligned with the organization that one may be considered the alter ego of the other concerning the matter in representation. Under those circumstances an attorney's representation of the organization is tantamount to representation of the individual and communication with that individual by another attorney can be considered an intrusion on the attorney-client relationship.

[2 FSM Intrm.233]

The State's position is rejected notwithstanding the apparently broad language in the comment to Rule 4.2. The comment was written against the background of earlier applications of this ethical rule. The earlier decisions reflected agreement that anybody with managerial responsibility or speaking authority for the organization on the matter in representation could not be contacted by opposing counsel. There was uncertainty about which other employees or agents could be contacted without obtaining consent of the organization's counsel. In re FMC Corp., 430 F. Supp. 1108 (D. W. Va. 1977); Veqa v. Bloomsburgh, 427 F. Supp. 593 (D. Mass. 1977). ABA/BNA, supra, 71:313-15.

The Rule 4.2 comment merely resolves that conflict. Under the comment, not only managerial persons but also those other employees and agents whose acts or omissions concerning the subject in representation might be imputed to the organization have a sufficient linkage of interests to be considered part of the organizational party for that particular representation. In this context, it is apparent that the comment was written with the understanding or assumption that it could only affect people who, at the time of the proposed communication, have a working relationship with the organization.

It is possible that a former employee who has altered but not severed his relationship with the organization may still be covered by the organization's Rule 4.2 aura. American Protection Ins. Co. v. MGM Grand Hotel, 2 Law. Man. Prof. Conduct 89 (D. Nev. Mar. 13, 1986). That, however, is not this case. Apparently all working relationships between the Pohnpei Hospital and Dr. Wilson have been terminated. There is no showing that the State's attorney is advising Dr. Wilson or representing her in any way. Indeed counsel says he has had no contact whatsoever with her concerning this matter.

Conclusion

Attorney Michelsen's interview with Dr. Wilson would not be an intrusion upon the attorney-client relationship between State Attorney Tarpley and the state government. The motion for protective order is granted and counsel for plaintiffs may contact Dr. Claire Wilson, subject to any ethical obligations of disclosure that counsel may have toward her.

1. "[These rules] ... shall be construed to secure the just, speedy, and inexpensive determination of every action." FSM Civ. R. 1.

2. "These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." FSM Evid. R. 102.

3. The general principle concerning the conduct of litigation is enunciated in Rule 3.4 of the Model Rules of Professional Conduct: "A lawyer shall not: (a) unlawfully obstruct another party's access to evidence." The comment to Rule 3.4 notes that "[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like."

4. Dr. Wilson is not a party within the meaning of FSM Civ. R. 33 and cannot be served with interrogatories under that rule. 4A J. Moore, Moore's Federal Practice 33.06 (1981); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2171 (1970).

5. By providing that the Code of Judicial Conduct, adopted by the House of Delegates of the American Bar Association in August, 1972, shall apply to FSM justices, Congress has demonstrated its expectation that American ethical standards would apply in the administration of justice here. 4 F.S.M.C. 122. Accordingly, the Model Rules of Professional Conduct, including the Preamble and Comments adopted by the House of Delegates of the American Bar Association in August, 1983, have been made applicable within the Federated States of Micronesia. It is therefore appropriate to rely for guidance here on United States authorities interpreting the Rule and its predecessors. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433 (App. 1983).

6. There were counterparts to Rule 4.2 dating back to the American Bar Association's original Canons of Legal Ethics adopted in 1908. The original Canon 9 said: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel."

The Code of Professional Responsibility adopted by the American Bar Association in 1970, provided, at DR 7-104(A): "During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."