Opinion
No. CV 03-0823990-S
June 11, 2003
MEMORANDUM OF DECISION ON MOTION FOR CLARIFICATION
The defendants have filed a "Motion for Clarification of Rule 4.2 of the Rules of Professional Conduct." The defendants seek to obtain an order from this Court to allow their attorneys permission to conduct ex parte interrogations of numerous unidentified former and present state employees with respect to this action in which the state of Connecticut is a party.
Rule 4.2 of the Connecticut Rules of Professional Conduct states the following:
In representing a client, a lawyer shall not communicate about the subject of the 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.
The dispute grows out of a letter from the Assistant Attorney General handling the matter to counsel for the defendant which read as follows:
We have been advised that your client, Gina Malapanis, is contacting personnel at various agencies of the state of Connecticut, regarding issues in this action. Further, she is asking such state officials to go to "her attorney's office" on April 14, 2003, to talk with her attorney, answer questions and give voluntary statements.
The attorney general represents all state agencies, and, thus all state agencies and their employees with regard to the matters at issue in this action, CT Page 7389-fe including any issue related to any past, present or future purchase involving Computers Plus Center, Inc., and any state agency or entity. Please be advised that you do not have permission to communicate with any state employees regarding any aspect of this action, or any matter related, directly or indirectly, to this action.
This office has not consented to your communicating with any state agency or employee. Accordingly, please refrain from communicating with any state agency or employee other than through this office.
The commentary to Rule 4.2 tends to support the claim by the defendant that the defendant has a right to interview some present or former state employees without the permission of the attorney general's office. The commentary provides:
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 other persons whose acts or omissions in connection with the matter may be inputted to the organization for purposes of civil or criminal liability or whose statements may constitute an admission on the part of the organization.
Disputes concerning the limitations imposed by Rule 4.2 have generally arisen in the context of counsel for the employer requesting a protective order. Protective orders are a recognized practice in Connecticut and are generally controlled by the provisions of Section 13-28 of the Practice Book. A typical dispute concerning the breadth of Rule 4.2 is found in Rivera v. Rowland, 18 Conn. L. Rptr. 378, 1996 Conn. Super. Lexus 3398, (J.D. Hartford/New Britain at Hartford) (Lavine, J., December 18, 1996). In that case, relying on Connecticut Rules of Professional Conduct 4.2, the defendants sought a protective order prohibiting the plaintiff's counsel from having any conduct with any attorney employed by the division of public defendant services without consent of defense counsel. The court held that assistant public defenders and other non-managerial employees were fact witnesses rather than parties, and thus the plaintiff's counsel was entitled to free unrestricted access.
Other cases considering the coverage and limitations of Rule 4.2 include Carrier Corporation v. Home Insurance Company; 6 Conn.L.Rptr. CT Page 7389-ff 3, 1992 Conn. Super. Lexus 326 Judicial district of Hartford/New Britain) (Schaller, J., February 10, 1992); Shoreline Computers, Inc. v. Warnaco, Inc.; 27 Conn. L. Rptr. 30, 200 Conn. Super. Lexus 842 (judicial district of New Haven) (Alander, J., April 3, 2000); Leslie Crain v. Trinity College, 23 Conn. L. Rptr. 238, 1998 Conn. Super. Lexus 3176 (judicial district of New Britain) (Peck J., November 3, 1998). All of these cases are helpful on the scope of coverage of § 4.2, but all likewise concern applications for protective orders.
The only case cited by the parties which appears to interpret breadth § 4.2 in a context other than protective orders is a case from the United States District Court for the District of Massachusetts applying Massachusetts' law. In Morrison v. Brandies University, 125 F.R.D. 14 (D.Mass. 1989) the court considered Massachusetts' disciplinary rule 7-104 (a) (1) which provided:
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 party or is authorized to do so.
The Court notes that Rule 4.2 refers to "authorized by law to do so" while Rule 7.104 refers to "is authorized to do so." The Federal Court wrote:
Thus, I do not believe that it would be appropriate for counsel to decide unilaterally whether or not to interview a corporate-party's employees without notice to the corporation's attorneys. Rather my point is that when an attorney seeks authorization to interview a corporate-party's employees, without the corporate-party's attorney present, the court must analyze the interest and needs of both sides on the basis of the facts and circumstances of the case, not on the basis of some test which is universally applicable to all cases without regard to the particularities of the specific case in which authorization is sought.
Morrison at footnote 1.
In the Massachusetts case, plaintiff's attorney wished to interview non-party members of certain committees that dealt with the plaintiff's CT Page 7389-fg question of tenure. Specifically, he wanted to include members of the departmental committee, members of the ad hoc committee, members of the faculty senate, and members of the committee which comprised the presidential review. Thus, even in Morrison, while it does not appear to have been a protective order case, the court was aware of the relationship between the employees proposed for questioning and the employer. In the instant case the Court has no idea of the relationship between the employees whom the defendant wishes to interview and the employer. Neither is it clear that "authorized by law to do so" and "authorized to do so" have precisely the same meaning in this context.
What is clear is that there is no Connecticut case law supporting a request of the type made by the defendants except in the context of a protective order. While the defendants have attempted to construct their request as if it were a request for a protective order, this is simply not the case. The motion lacks the specificity which one would expect to find in a protective order.
More importantly, the motion is not made to protect any witnesses. This Motion to Request Clarification requests clarification not of an order of this court, but of a rule of professional conduct. The Practice Book does not contain any provisions permitting Motions for Clarification. Motions for Clarification, to the extent that they are allowed, have been granted to clarify prior orders of the court in a pending case. See, e.g., In re Brianna, 50 Conn. App. 805, 811 (1998); Holcombe v. Holcombe, 22 Conn. App. 263 (1990); Dradecz v. Zadravecz, 39 Conn. App. 28 (1995).
Finally, our Supreme Court has held that an action at law does not lie where the purpose is merely to secure advice on the law. Connecticut Savings Bank v. First National Bank Trust, 133 Conn. 403, 411 (1947).
In summary, the Court holds that it is being asked to render an advisory opinion. Such opinions are not authorized by our law. Both the request and the proposed order by the defendants are far too broad for the Court to be able to give meaningful advice. The Court recognizes that Professional Rule 4.2 is not so broad as to support the statement that the attorney general represents "all state agencies and their employees" so as to make them unavailable for ex parte interview under Rule 4.2. However, the Court has neither the jurisdiction nor a sufficient factual basis to issue a specific order concerning the interviewing of unidentified state employees
The Court also takes judicial notice that the Connecticut Bar Association maintains a professional ethics committee which will, at CT Page 7389-fh times, issue advisory opinions on rules relating to the canons of ethics. In the absence of the procedural posture of an appropriate protective order, this Court is without authority to substitute its judgment for the judgment of the professional ethics committee of the Connecticut Bar Association.
The motion for clarification is dismissed.
BY THE COURT
Kevin E. Booth, J. CT Page 7389-fi