From the Ethics Committee

Whether an employee is a witness or a party

Chapter 4, Rule 1, Professional Conduct Handbook

Lawyer A represented a plaintiff who was suing an organization (a legal entity). Lawyer A asked whether he was prohibited by Chapter 4, Rule 1.1 from contacting an employee of the organization concerning matters at issue in the litigation. The organization was represented by Lawyer B.

Rule 1.1 states: "A lawyer who has an interest in a matter, or represents a client who has an interest in a matter, must not communicate with any person regarding the matter if, to the lawyer's knowledge, the person is represented by another lawyer, except through or with the consent of the person's lawyer."

The Committee noted and approved the following reasoning of Wolfram in Modern Legal Ethics, 1986, at p. 613 on whether an employee of a corporate litigant is a party to litigation and approachable only through the lawyer for the entity, or is merely a witness:

Application of the anti-contact rule to corporate clients should be guided by the policy objective of the rule. The objective of the anti-contact rule is to prevent improvident settlements and similarly major capitulations of legal position on the part of a momentarily uncounseled, but represented, party and to enable the corporation's lawyer to maintain an effective lawyer-client relationship with members of management. Thus, in the case of corporate and similar entities, the anti-contact rule should prohibit contact with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation's lawyer, or any member of the organization whose own interests are directly at stake in the representation. And generally the anti-contact rules should apply if an employee or other non-official person affiliated with an organization, no matter how powerless within the organization, is independently represented in the matter.

Applying this reasoning to this case, the Committee was of the view that the employee's authority in the matter fell short of the authority that he would be required to have in order to find that he was a party to the litigation. The materials did not disclose that he had the power to bind the organization in the matter, or that direct contact with him by Lawyer A would undermine the lawyer-client relationship between Lawyer B and the organization, nor were the employee's own interests at stake in the litigation.

For these reasons, the Committee concluded that, subject to any rulings by the court, it was proper for Lawyer A to contact the employee in accordance with the provisions regarding contacting witnesses set out in Chapter 8 of the Professional Conduct Handbook.

Lawyers' participation in the First Canadian Title "Home Closing Services Program" is improper

The Ethics Committee has determined that it is not proper for a lawyer to act for all of the purchaser, mortgagee and the title insurer under the First Canadian Title "Home Closing Services Program." Provided multiple representation is permitted by Appendix 3 of the Professional Conduct Handbook, a lawyer may act jointly for a purchaser and a mortgagee who have contracted to purchase title insurance from First Canadian. However, the lawyer must not at the same time represent First Canadian in the transaction or permit First Canadian to determine the procedures that will be followed or fees that will be charged in relation to the matter.

More details on the Ethics Committee opinion are expected in November and will be published in the November-December Bulletin.