What is privileged when you have to interview your corporate client’s CEO, or a security guard, or a manager, or even former employees? Does the attorney-client privilege apply to your interview? Is the employee your client? Does the work-product privilege apply?
About the Case
There are commonly occurring questions that were addressed in a recent Pennsylvania Superior Court decision in the case of Newsuan v. Republic Services. The Court’s opinion gives us some guidance on the questions raised above, although the decision has come under some criticism.
In Newsuan, Republic Services retained counsel to defend it against Plaintiff’s claims. Counsel conducted interviews of 9 current employees and 3 former employees of Republic Services. Counsel took notes during these interviews. After the interviews were over, counsel offered to represent each of the employees/former employees for the purposes of a deposition.
Counsel for Republic Services refused to give up any information about the 12 interviewed employees, claiming that the employees were now his clients, thus precluding any ex parte interviews of them by the plaintiff’s counsel.
The trial court held that corporate counsel had not effectively established an attorney-client relationship with any of the 12 witnesses. The court rejected all claims of attorney-client privilege and work-product privilege. It ordered the production of counsel’s interview notes and other communications with the witnesses.
It is essential for corporate counsel to remember that his or her client is not the witness sitting in front of them during an interview, but rather, the client is the corporate entity. Corporate counsel cannot represent both the corporate client and the individual employees unless he or she obtains knowing waivers of any potential conflicts between the corporation and the employees, such that counsel can jointly represent both.
In reversing the lower court in Newsuan, the Superior Court held that corporate counsel had not effectively established an attorney-client relationship with the 12 current or former employees, and thus attorney-client privilege did not apply. The Court did say, however, the interviews of the 12 current and former employees were protected by the attorney-client privilege arising between corporate counsel and Republic Services because with both current and former employees’ communications about worksite conditions would be helpful to corporate counsel in providing legal advice to Republic Services.
Finally, the Superior Court concluded that the work product privilege protected corporate counsel’s notes of the interviews, although counsel would have to identify the witnesses and the plaintiff’s counsel would be permitted to perform ex parte interviews.
The extension of the corporate privilege to interviews with former employees appears to be an extension of existing Pennsylvania law, even though the Court made such a holding without citation to any Pennsylvania authority, and the holding actually appeared only in a footnote within the opinion.
Further, the fact that the Superior Court ruled that the plaintiff’s counsel could perform ex parte interviews of both former and current employees of Republic Services seems to run afoul of Rule of Professional Conduct 4.2. At least one commentator has criticized the Newsuan opinion as “significantly flawed” on the issues of privilege. Nevertheless, unless this case is reversed on further appeal or otherwise overruled at a later date, the decision provides our latest and best advice on solving the problem of privilege when interviewing a corporate client’s employees.