It’s been a busy last couple of weeks. One issue I have been dealing with is an opposing counsel’s attempt to have me agree to language in a proposed settlement agreement between my client (employee) and his client (employer) that I will refrain from representing other individuals in legal matters against his client. By way of background, during the course of depositions taken in the case, it became apparent to myself, as well as opposing counsel, that other current employees at the company may also have legal claims against the company.

I have only had this come up once before in my practice. Strangely, this was also a recent topic on an attorney list serve that I am a member of.

Fortunately, there is an ethical rule on point, which forbids such attempts at restricting an attorney’s right to represent whoever the attorney chooses to represent. Click here.

As you can see, TRPC 5.6(b) provides, quite clearly I might add, that “[a] lawyer shall not participate in offering or making . . . an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.” Comment [2] to TRPC 5.6 further states that “[p]aragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.”

When advised of this rule, opposing counsel deleted the proposed language and we moved on to argue about other matters! In any event, it is worth noting that attempting to refrain an attorney from representing other persons is forbidden in Tennessee.

Occasionally I will work on a case for one of my clients with an attorney associated with another firm. I do this to benefit my client by providing the best representation possible. This is because many attorneys specialize in a discrete or obscure area of the law and they have special talent and knowledge that can benefit my client. Of course, the client usually wonders how the attorneys fees will be paid and divided in this situation.

Tennessee’s Rules of Professional Conduct contain an express provision concerning the splitting of fees among attorneys who do not work in the same firm. Click here.

Under RPC 1.5(e), a division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written consent of the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of and does not object to the participation of all the lawyers involved; and,

(3) the total fee is reasonable.

As Comment [5] to RPC 1.5 provides, “[a] division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist.” Interestingly, Comment [5] also states that RPC 1.5 “does not require disclosure to the client of the share that each lawyer is to receive.” But as a practical matter, I see no reason to refuse to disclose the fee division if asked for this information by a client.

A question that I get asked from time to time concerns whether it is lawful under Tennessee law for one person to tape record a conversation with another. The question is frequently asked in the context of an employment dispute. For example, I might be asked by a client or prospective client whether they can tape record a conversation with their boss. So what’s the answer?

Under Tennessee law, a person who is a party to a wire, oral, or electronic communication, or who has obtained the consent of at least one party, can lawfully record a communication and divulge the contents of the recorded conversation unless he has a criminal or tortious purpose. See Tenn. Code Ann. § 39-13-601(5).

Interestingly, Tennessee’s Rule of Professional Conduct also address whether an attorney can surreptitiously record a conversation. The Comment to RPC 4.4 provides in relevant part:

For example, a lawyer may not secretly record a conversation or the activities of another person if doing so would violate state or federal law specifically prohibiting such recording. Otherwise, this Rule does not prohibit secret recording so long as the lawyer has a substantial purpose other than to embarrass or burden the persons being recorded. It would be a violation of Rule 4.1 or Rule 8.4(c), however, if the lawyer stated falsely or affirmatively misled another to believe that a conversation or an activity was not being recorded. By itself, however, secret taping does not violate either Rule 8.4(c) (prohibition against dishonest or deceitful conduct) or Rule 8.4(d) (prohibition against conduct prejudicial to the administration of justice.) Click here..

Also, Comment [5] to RPC 8.4 (which addresses attorney misconduct) states that “[t]he lawful secret or surreptitious recording of a conversation or the actions of another for the purpose of obtaining or preserving evidence does not, by itself, constitute conduct involving deceit or dishonesty.”. Click here..

In determining whether a prospective client has a case a diligent attorney will want to talk to with witnesses. In my line of work, i.e., representing individuals in employment disputes, this often means talking to persons who formerly worked at my client’s current or former employer.

As all Tennessee attorneys should know, Tennessee’s Rules of Professional Conduct regulate an attorney’s communications. Indeed, Rule 4.2 of the Tennessee Rules of Professional Conduct specifically governs an attorney’s communications with a person represented by counsel. Click here. The rule provides as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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.

It is unclear from this language whether attorneys are ethically permitted to speak with former employees and agents of a corporation represented by an attorney. Fortunately, this precise situation is addressed in Comment [4] to RPC 4.2. The comment provides as follows:

If an agent or employee of an organization is represented in the matter by his or her own counsel, consent by that counsel will be sufficient for purposes of this Rule. Consent of the organization’s lawyer is not required for communication with a former agent or employee. See Rule 4.4 regarding the lawyer’s duty not to violate the organization’s legal rights by inquiring about information protected by the organization’s attorney-client privilege or as work-product of the organization’s lawyer. In communicating with a current or former agent or employee of an organization, a lawyer shall not solicit or assist in the breach of any duty of confidentiality owed by the agent to the organization. See RPC 4.4.

Accordingly, RPC 4.2 permits an attorney to speak with the former employees and agents of a company represented by counsel. But as the comment also states/warns, extreme caution must be exercised to avoid causing any attorney-client privileged information (or other privileged info) from being divulged. As a matter of practice, when speaking to a former employee or agent, I always start the conversation by instructing the person to not reveal any information that the company’s attorney communicated to the individual. This way I can fulfill my ethical duties to my client by diligently investigating the case, while making sure I do not cause the breach of any attorney client or other privileged information.