Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990)).
Some background on the plaintiff's request to interview the paramedics ex parte is in order. The plaintiff filed her initial motion for disqualification on October 16, 1996. The motion requested that City counsel "not be permitted to represent paramedics witnesses Marlow and O'Leary at their depositions or as witnesses in this case." Plaintiffs' Motion at 1.
During a status hearing on October 23, 1996, the court and the parties discussed -- without reaching any definite conclusions -- (1) the possibility that the paramedics' statements might constitute "party admissions" by the City, and (2) whether the paramedics' ability to bind the City was even a relevant issue in light of the plaintiff's original motion. Following this discussion, the court granted the plaintiff's request for leave to file an amended motion. On November 7, 1996, the plaintiff filed a three-page supplemental memorandum that addressed the issue of whether the paramedics' statements might be admitted into evidence as admissions of the City. The memorandum did not amend the original motion by requesting additional forms of relief. Nor did the memorandum explain why the paramedics' ability to bind the City should be a dispositive issue. Plaintiffs' Supplemental Memorandum of Law in Support of Their Motion to Disallow Corporation Counsel's Common Representation of City of Chicago and Neutral City Employees Paramedics ("Plaintiffs' Supplemental Memorandum") at 1-3. The defendants filed their response to the plaintiff's motion on December 18, 1996. Not until February 5, 1997, in the plaintiff's reply to the defendants' response to the disqualification motion, did the plaintiff clearly express her desire to have her attorneys informally interview the paramedics. Plaintiffs' Reply to Defendant City's Response to Plaintiffs' Motion to Disallow Corporation Counsel's Common Representation ("Plaintiffs' Reply") at 1-4.
This procedural history may help explain why the plaintiff's request for ex parte interviews appears to be something of an afterthought -- and why the plaintiff appears to have glossed over an important issue. A threshold question under both DR 5-105(B) and Rule 1.7 is whether an attorney-client relationship exists between City counsel and the paramedics. See AVR, Inc. v. Cemstone Products Co., No. 3-92-551, 1993 WL 104933, at *1 (D. Minn. Mar. 25, 1993) (stating Rules 1.7 and 1.9 are not implicated unless the party seeking disqualification shows that an attorney-client relationship existed); Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957, 961 (D. Del. 1992) (noting that "the threshold question in determining the applicability of Rule 1.7(a) is whether an attorney-client relationship existed"); see also Rules of Professional Conduct for the Northern District of Illinois, Scope (1995) (commenting that most of the duties flowing from an attorney-client relationship attach "after the client has requested the lawyer to render legal services and the lawyer has agreed to do so"). Thus, the plaintiff could not have prevailed on her motion for disqualification unless she established (or at least assumed) that an attorney-client relationship existed between City counsel, the defendants, and the paramedics. One cannot disqualify a clientless attorney. Perhaps more importantly, City counsel has not opposed the plaintiff's motion on the ground that the paramedics are not its clients; quite to the contrary, City counsel openly claims that an attorney-client relationship with Marlow and O'Leary has been created. See Defendant's Response at 8 (commenting that "the City attorneys have acted in the best interests of their clients, O'Leary and Marlow"); see also id. at 16 (arguing that prior communications between City counsel and the paramedics should be privileged); id. at 19 (asserting that Marlow and O'Leary "have elected to have counsel"). City counsel has also submitted affidavits indicating that the paramedics wish to be represented in connection with their roles as witnesses.
Given the statements of City counsel and the two affidavits -- and given the plaintiff's failure to address the issue -- it appears that the paramedics have consulted with City counsel and that the paramedics have chosen City counsel to serve as their legal advisor.
The paramedics' status as "clients" of City counsel has some important implications for the plaintiff's request to conduct ex parte interviews. Rule 4.2 forbids an attorney from communicating with a "party" whom the attorney knows to be represented in the matter by another lawyer. When the defendant is an organization, the comment to Rule 4.2 indicates that three types of agents may be classified as "represented parties": managerial employees, employees whose acts may be imputed to the organization, and employees whose admissions may be binding on the organization. Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723, 728 (N.D. Ill. 1996) (Keys, Mag. J.) (citing Breedlove v. Tele-Trip Co., 1992 U.S. Dist. LEXIS 12149, No. 91 C 5702, 1992 WL 202147, at *1 (N.D. Ill. Aug. 14, 1992)). In this case, the plaintiff argues that informal interviews are permissible for two reasons. First, the plaintiff argues that the statements of the paramedics cannot bind the City as party defendant. Plaintiffs' Supplemental Memorandum at 2-3. Second, the plaintiff argues that even if Marlow and O'Leary could bind the City, the plaintiff is willing to stipulate that any statements obtained from the paramedics during informal interviews will not be used as admissions at trial. Plaintiffs' Reply at 2-4. In support of these arguments, the plaintiff cites cases such as Campbell v. Fasco Industries, Inc., 861 F. Supp. 1385, 1392-93 (N.D. Ill. 1994) (holding that statements of two managers were not admissible against their employer because the statements did not concern matters within the scope of their employment), and B.H. by Monahan v. Johnson, 128 F.R.D. 659, 662-63 (N.D. Ill. 1989) (Grady, C.J.) (holding that the plaintiffs' attorneys could conduct ex parte interviews of government caseworkers but disallowing the use of the caseworkers' statements as party admissions).
However, once it has been established that an independent attorney-client relationship between City counsel and the paramedics exists, the decisions cited by the plaintiff are inapposite. Under Rule 4.2, the admissibility of an employee's statement as a "party admission" is relevant only for the purposes of determining whether or not the employee should be viewed as a "represented party." In addition, as we held in B.H. by Monahan, under some circumstances a court may allow ex parte interviews to occur despite the fact that the employees' statements might have binding effects on the defendant. But if a valid attorney-client relationship has already been created through other means, an analysis of whether an employee's statement constitutes a "party admission" that should be admitted into evidence becomes superfluous. Such is the case here. To reiterate, City counsel's submissions and the plaintiff's omissions indicate that an attorney-client relationship has arisen between the paramedics and the City's attorneys. We therefore hold that the plaintiff's attorneys may not interview Marlow and O'Leary ex parte.
We express no opinion as to whether the paramedics' statements should be treated as "party admissions" by the City.
For the foregoing reasons, the plaintiff's motion to prevent the defendants' attorneys from representing the paramedics is denied without prejudice. City counsel is directed to file an affidavit by March 21, 1997, that the risks and advantages of common representation have been fully disclosed to Marlow and O'Leary and, that the witnesses want the City's attorneys to serve as their counsel. The plaintiff's request to conduct ex parte interviews with the paramedics is denied without prejudice.
DATED: February 27, 1997
John F. Grady, United States District Judge