Ethics Opinion

Opinion No. 02-4

April 2002

Summary: The Massachusetts Rules of Professional Conduct would not govern the ability of a Massachusetts-licensed federal government lawyer to interview former employees of a corporation party in litigation pending before a federal agency in another jurisdiction.

Facts: A federal government lawyer, licensed to practice only in Massachusetts, is engaged in litigation against a corporation before a federal government agency where he is authorized to practice. The agency is located outside the boundaries of Massachusetts. The lawyer wishes to interview former employees of the corporation and inquires whether he may do so under Massachusetts Rule of Professional Conduct (MRPC) 4.2. The agency has no rules stating a code of professional conduct for lawyers litigating before it.

Discussion: This inquiry requires us to advise whether the Massachusetts Supreme Judicial Court would as a matter of its choice of law rules apply the Massachusetts Rules of Professional Conduct to govern a lawyer's conduct with respect to a matter that relates to how a lawyer may gather relevant facts relating to ongoing litigation in another jurisdiction. When the Supreme Judicial Court adopted the MRPC, effective January 1, 1998, it specifically declined to adopt Model Rule 8.5(b), which stated detailed choice- of-law rules with respect to conduct occurring outside the adopting jurisdiction. In so doing, it left in place the common law of conflict of laws to govern such conduct. That common law may be very complex as it applies to lawyers who do legal work in states other than those in which they are admitted. But the Committee believes that this particular inquiry does not present such a problem. As explained by Geoffrey Hazard and Harold Hodes in 2 The Law of Lawyering p. 66-8 (3d ed.):

Choice of the appropriate law for out-of-state litigation practice is not problematic. Courts universally impose their own codes of conduct and rules of court upon all litigants and their representatives. Both in-state lawyers and out-of-state lawyers admitted pro hac vice must obey those rules while conducting litigation.

Although the Supreme Judicial Court did not adopt Model Rule 8.5(b), we do not believe that it was intending thereby to reject the general rule identified by Hazard and Hodes that was embodied in subsection (1) of that Model Rule. Another other solution would seem bizarre in the circumstances of this inquiry. We could have the spectacle of lawyers for one side being permitted to interview former employees of an organization while lawyers for the other could not, depending on where particular lawyers were admitted. Or one lawyer from one side being permitted to conduct such an interview while another lawyer from the same side could not. Or one lawyer being assigned to a matter just so that she could conduct such an interview. Such a rule would make no sense at all.

The inquirer asked what law would govern his conduct if Massachusetts law did not and the agency had not adopted a code of ethics. We cannot presume to advise on what course of action an out-of-state agency would follow. The McDade Amendment, 28 U.S.C. sec. 530B, providing that "An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State," does not apply to federal agency lawyers. 28 CFR ß77.2. The agency could, however, conceivably apply that Amendment by analogy. Or it could craft its own common law of professional responsibility, as courts did for years before adopting written codes. In any event, we do not think that as a matter of Massachusetts law, the Supreme Judicial Court would apply the MRPC to govern a lawyer's ability to interview a party's former employees in a situation like that presented in this inquiry.

We should add that we are addressing only the precise question that was asked in this inquiry. In particular, we are not addressing the question whether the MRPC would apply to lawyer conduct out of Massachusetts in a transactional matter, or in a matter that might eventuate in litigation, or even in a litigation matter when the particular conduct reflected on a lawyer's fitness to practice law.

Permission to publish granted by the House of Delegates on June 26, 2002. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.