NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 705
May a lawyer who is employed by a corporation as a personnel officer communicate with an employee who is suspected of wrongdoing and who has hired a lawyer in connection with a possible accusation of wrongdoing, without the consent of employee’s lawyer?
Numerous persons who have legal training and are members of the bar are employed in jobs where they are not expected to act as lawyers. Lawyers may be chief executive officers of corporations, or may act as investment bankers, bank loan or trust officers, strategic planners, government relations officers, or personnel officers. While the skills of a lawyer, including analysis of problems and negotiation, may be useful in performing the job, these are jobs which non-lawyers also hold.
It has long been recognized that an attorney may participate in businesses other than legal practice. It is also well accepted that lawyers are bound by the Code of Professional Responsibility even when not performing legal work. See N.Y. State 594 (1987) (“a lawyer is held to the standards of professional conduct set forth in the [Code] even in non-legal activities”)- For example, a lawyer/business executive is subject to DR 1-102(A)(4), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Certain provisions of the Code, however, by their terms apply only in the course of a representation of a client. The question before us is whether a lawyer/business executive is subject to DR 7-102(A)(4), which provides as follows:
During the course of the representation of a client a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Ethics opinions identify two reasons for the prohibition of DR 7- 102(A)(4): (1) to protect a represented party from the superior knowledge and skill of another lawyer, and (2) to preserve the integrity and proper functioning of the lawyer-client relationship between the client and his or her lawyer. See N.Y. County 676 (1990). But the rule does not strive to eliminate communications with the represented person merely because the lawyer is an intelligent interlocutor. Instead, the rule, by its terms, applies only to a person who is acting during the course of a representation. Therefore, if the lawyer is not acting during the course of a representation, the communication is not covered by DR 7-104(A).
Whether a corporate employee who happens to be a lawyer represents the corporation within the meaning of DR 7-102(A)(4) depends on the facts and circumstances involving the particular employee. In other contexts, courts have used a variety of methods to determine whether a representation exists, including (1) whether the lawyer and client agreed that the lawyer would provide legal services to the client; (2) whether the lawyer actually provides legal advice; and (3)- whether the client relies on the lawyer for legal advice. Consequently, the fact that an employee is a member of the bar does not automatically mean that the employee is engaged in the legal representation of the employer. Whether a representation occurs depends upon, whether the corporation has hired the lawyer to provide legal services and whether the lawyer actually provides legal services. It is the Committee’s opinion, for instance, that negotiating the business terms of an employment contract with a prospective employee does not automatically qualify as a legal service; whether a “representation” within the meaning of DR 7-102(A)(4) exists would depend on all of the facts and circumstances relating to the lawyer’s employment.
One factor that may be relevant to a determination of whether the lawyer/employee is providing legal service is whether other inside or outside lawyers for the corporation provide legal advice relating to the employer’s tasks. Also relevant would be whether other employees in the Personnel Department perform the same kind of work as the lawyer/employee. The existence of such other employees is some evidence that the corporation is not looking to the employee for legal representation.
The fact that the employee works in the Personnel Department rather than the Legal Department and has the title of Personnel Officer rather than Counsel is not dispositive. What is important is the nature of the employment and not where it is performed or what it is called. If the business executive performs legal services or gives legal advice, the employee is engaged in a representation within the meaning ‘of DR 7-104(A).
The inquiry necessary to determine whether a person is acting as a lawyer or a non-lawyer is similar to that performed to determine whether the attorney client privilege is applicable in a particular situation. The attorney client privilege attaches when a person seeks legal advice or assistance from a lawyer acting as such on behalf of the client. The privilege does not attach if the client was seeking business advice, even if the advice was sought from a lawyer. See United States v. Huberts, 637 F.2d 630, 640 (9th Cir. 1980), cert, denied, 451 U.S. 975 (1981)/(attorney who serves as a business agent to a client may not assert the attorney-client privilege because no confidential relationship attaches).
A lawyer employed by a corporation as an officer in the Personnel Department and who does not function as a lawyer may communicate with an employee who is suspected of wrongdoing and who has hired a lawyer in connection with the matter without the consent of the employee’s lawyer.
June 1, 1995