Niesig v. Team I Brief Amici Curiae

    THOMAS NIESIG,
Plaintiff-Appellant,

-against-

STATE OF NEW YORK
COURT OF APPEALS

TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,
_________ Defendants-Respondents. Index No. 7524/87
TEAM I, FRED KOMSON, MAURO RICCHIUTTI PAUL X GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

Third Party Plaintiffs-Respondents,
-against-

DE TRAE ENTERPRISES, INC.,
Third Party Defendant-Respondent.

x
BEHALF OF NAACP LEGAL DEFENSE & EDUCATIONAL FUND INC NATIONAL ORGANIZATION FOR WOMEN, INC. AND PLAINTIFF EMPLOYMENT

LAWYERS ASSOCIATION, AMICI CURIAE
JULIUS LEVONNE CHAMBERS, ESQ. 
CHARLES STEVEN RALSTON, ESQ. RONALD L. ELLIS, ESQ.
Attorneys for NAACP Legal Defense& Educational Fund99 Hudson Street
New York, New York 10013(212) 219-1900
VANESSA MERTON, ESQ.
Attorney for Plaintiff 
Employment Lawyers Association (New York Chapter)
1740 Broadway, 25th Floor New York, New York 10009 (212) 489-8230

May 10,1990



KIM GANDY, ESQ.
Attorney for National Organization for Women, Inc.
1401 New York Avenue, N.W.Suite 800
Washington, D.C. 20005-2102 (202) 347-2279
STEEL & BELLMAN, P.C.
Attorneys for all Amici 351 Broadway
New York, New York 10013 (212) 925-7400

On the Brief
MIRIAM F. CLARK 
LEWIS M. STEEL



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TABLE OF AUTHORITIES AND CASES

Alexander v. Gardner-Denver 415 U.S. 35, 47 (1974)
Christianburq Garnet Co. v. EEOC 434 U.S. 434 412 (1978)
EEOC v. Plumbers Local
311 F. Supp 464 (S.D. Ohio 1970)
Frank v. Capital Communications 25 FEP 1186 (S.D.N.Y. 1981)
Gulf Oil v. Bernard 
452 U.S. 89 (1981)
Havens Realty v. Coleman 455 U.S. 363 (1982)
Hunter v. Allis Chalmers Coro.797 F2d 1417 (7th Cir. 1986)
McDonnell Douglas v. Green 411 U.S. 792 (1973)
NLRB v. Robbins Tire & Rubber Co. 437 U.S. 214 (1978) “
New York Gaslight Club v. Carev 447 U.S. 54, 63 (1980)
Newman v. Piggie Park Enternrispg 390 U . S . 400, 402 (1968)
Niesig v. Team I.
149 A.D.2d 94 (2nd Dept. 1989) passim
Price Waterhouse v. Hopkins 109 S. Ct. 1775 (1989)
Sheehan v, Purolator Inc.839 F2d 99 (2d Cir.)

cert, denied 109 S Ct. 226 (1988)
Snell y, Suffolk County 
782 F2d 1094 (2d Cir. 1986)



State Division of Human Rights v. Kilian35 N.Y. 201 (1974) -------------.......................  4,9
Taylor v. General Electric Coro.87 Civ. 1211C (WDNY 3/15/90) ............
Trafficante v. Metropolitan Life Insurance Co 7 09 U.S. 207 (1972) 7777------ 1

Fed R. civil Proc. 23
N.Y. Civ. Practice Law & Rules 901

......................  8



PRELIMINARY STATEMENT

This brief focuses the Court's attention on the extraor­
dinarily detrimental effect the rule in Niesiq v. Team I. 149 
A.D.2d 94 (2d Dept. 1989) will have on civil rights litigation if 
it is adopted by this Court. As presently formulated, the rule 
is so broad that it will apply to virtually all forms of communi­
cation between an employee, an applicant, or an employee's 
attorney and a corporate defendant. Such a rule, as amici show 
below, severely impairs plaintiffs and their counsel in their 
role as private attorneys general enforcing laws of critical 
public importance and will substantially set back civil rights 
enforcement in both federal and state courts. See, Taylor v. 
General Electric Corp., 87 Civ. 1211C (W.D.N.Y. 3/15/90), at­
tached hereto, and cases cited therein.

Given the importance and difficulty of civil rights enforce­
ment, the Court should be wary of attempts to impose so-called 
bright line, across-the-board rules on private attorneys general. 
Standards of conduct for plaintiffs and their attorneys, there­
fore, should be developed only after careful consideration of the 
facts of individual cases.



STATEMENT OF FACTS

Amici understand that the major facts are not in dispute and 
therefore adopt the Statement of Facts set forth in the memo­
randum of law of plaintiff-appellant.

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STATEMENT OF INTEREST OF AMICI

The NAACP Legal Defense & Educational Fund, Inc. is a non­
profit corporation, incorporated under the laws of the State of 
New York in 1939. It was formed to assist blacks to secure their 
constitutional and civil rights by the prosecution of lawsuits. 
The charter was approved by a New York Court, authorizing the 
organization to serve as a legal aid society.

The Plaintiff Employment Lawyers Association is a non-profit 
association of attorneys in 49 states whose practice involves the 
representation of individual employees seeking to vindicate basic 
employment rights. The clients of many PELA members are employ­
ees who lack union representation and need legal assistance to 
prevent or redress discriminatory or wrongful treatment in the 
workplace. New York PELA, the amicus herein, is the PELA chapter 
for attorneys practicing in the State of New York.

The National Organization for Women, Inc. is a membership 
organization of over 250,000 members in 800 chapters nationwide. 
It was founded in 1966 and has among its goals the elimination of 
discrimination in employment, and the effective enforcement of 
laws and regulations regarding egual employment opportunities.

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ARGUMENT
UNDER THE NIESIG RULE, CIVIL RIGHTS PLAINTIFFS 

AND THEIR ATTORNEYS, IN THEIR ROLE AS 
PRIVATE ATTORNEYS GENERAL, WILL BE BARRED 

FROM INVESTIGATING AND PROSECUTING MERITORIOUS ACTIONS

The United States Supreme Court has reaffirmed time and 
again that the "main generating force" behind civil rights laws 
is "private suits, in which . . . the complainants act not only 
on their own behalf but also 'as private attorneys general in 
vindicating a policy that Congress considered to be of the 
highest p r i o r i t y . Trafficante v. Metropolitan Life Insurance 
Co»/ 409 U.S. 207 (1972), citing Newman v. Piqgie Park Enter­
prises, 390 U.S. 400, 402 (1968).1 In affirming this Court's 
decision that attorneys' fees may be awarded to a successful 
civil rights plaintiff for representation before the New York 
State Division of Human Rights, the United States Supreme Court 
reaffirmed that civil rights plaintiffs are cast by Congress in 
the role of private attorneys general and held that "one of 
Congress' primary purposes in enacting [Title VII] was to 'make 
it easier for a plaintiff of limited means to bring a meritorious 
suit.'" New York Gaslight Club v. Carey, 447 U.S. 54, 63 (1980), 
quoting Christianburq Garment Co. v. EEOC, 434 U.S. 412, 420 
(1978) .

The Appellate Division's decision in Niesiq eviscerates this 
policy almost entirely. A review of civil rights cases over the 

reveals that had the Niesig rule been in place, civil

The leading role taken by the anti-discrimination laws of the State of New York is well established. State Division of Human Rights v. Kilian. 35 N.Y.2d 201 (1974). ----
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rights enforcement would have been significantly weakened. For 
example, in the seminal case of McDonnell-Douglas v. Green, 411 
U.S. 792 (1973), the Supreme Court set forth a now familiar 
standard of proof of a disparate treatment case. The Court 
suggested that plaintiff produce the following evidence in 
support of its argument that the employer's real motive was 
discriminatory: "[E]vidence that white employees involved in
acts . . .  of comparable seriousness were . . . retained or 
rehired" and evidence concerning the employer's "general policy 
and practice with respect to minority employment." McDonnell- 
Douglas , 411 U.S. at 804. As a rule, neither plaintiff nor his 
or her lawyer can obtain this information without discussions 
with plaintiff's co-workers. To insist that company counsel be 
present at each of these discussions is to ensure the intimida­
tion of many of these potential witnesses into silence. This is 
especially true because Niesiq places no limits on the contacts 
between corporate counsel and these employees —  before, during 
and after discussions with plaintiff's counsel. As the United 
States Supreme Court has warned, "The danger of witness intimi­
dation is particularly acute with respect to current employees —  
whether rank and file, supervisory, or managerial —  over whom 
the employer, by virtue of the employment relationship, may 
exercise intense leverage. Not only can the employer fire the 
employee, but job assignments can be switched, hours can be 
adjusted, wage and salary increases held up and other more subtle 
forms of influence exerted." NLRB v. Robbins Tire & Rubber Co.. 
437 U.S. 214, 240 (1978). See EEOC v. Plumbers Local 189. 311

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F.Supp. 464, 466 (S.D.Ohio 1970) (conversations with union and 
employer present held to be coercive and statements made during 
the course thereof not truly voluntary).

The pressing need for an employment discrimination plaintiff 
and his or her counsel to communicate privately with other 
employees is starkly illustrated by the recent decision of the 
United States Court of Appeals for the Second Circuit in Snell v. 
Suffolk County, 782 F.2d 1094 (2d Cir. 1986), affirming 611 
F.Supp. 521 (E.D.N.Y. 1985), a case involving overt and wide­
spread racial harassment of corrections officers employed by 
Suffolk County. The district court in that case, Chief Judge 
Jack Weinstein, denied plaintiffs' motion for class certifica­
tion, but ordered plaintiffs' counsel to canvass other minority 
employees and determine if they wished to join in the action. 
Under Niesig, of course, such an action would have been pro­
hibited. Moreover, the Court's description of the work environ­
ment in Suffolk County makes clear the need for plaintiffs' 
counsel to interview fellow employees outside the presence of 
opposing counsel. One witness, for example, testified that after 
an unsuccessful attempt to challenge the harassment in an admin­
istrative hearing, a group of white officers marched outside the 
hearing room chanting and carrying signs declaring, "We have the 
spic." Snell, 782 F.2d at 1098. Several other officers testi­
fied that they had also suffered and witnessed racial harassment, 
but had chosen not to report it for fear of retaliation. Id., at 
1105, n. 13. In such an atmosphere, the presence of an employ­

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er's lawyer during a discussion of working conditions is likely 
to close off any meaningful discussion.

Similar workplace conditions prevailed in Hunter v. Allis- 
Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986), in which plaintiff 
described racial harassment to include racial graffiti on the 
bulletin board and tampering with tools. Significantly, much of 
plaintiff's evidence in that case concerned the harassment of 
other employees, such as derogatory notes and a hangman's noose 
left in another worker's equipment. Hunter also presented 
evidence that his foreman called another black worker a "nigger" 
and often referred to other black workers as "niggers" behind 
their backs. Hunter, 797 F.2d at 1420. The Court held that the 
evidence of Hunter's co-workers was "pertinent, perhaps essen­
tial, to Hunter's case." Id. , at 1424. Neither Hunter nor his 
lawyer could have gathered this evidence without open discussions 
with other black and white employees. In fact, the opinion notes 
that Hunter's lawyer visited the plant during the investigatory 
process. Id., at 1420. Again, it is hard to believe that the 
presence of Allis-Chalmers' lawyer during these discussions would 
not have significantly inhibited these already burdened employ­
ees .

The need for plaintiff's counsel in an employment dis­
crimination case to communicate with his or her client's fellow 
employees was clearly explained by the court in Frank v. Capital 
Cities Communications, 25 FEP 1186 (S.D.N.Y 1981). In that case, 
an age discrimination plaintiff requested permission to notify

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other employees of the suit pursuant to 28 U.S.C. §626(b). The 
court granted permission, stating:

The experience of other employees 
may well be probative of the exis­
tence vel non of a discriminatory 
policy, thereby affecting the merits 
of plaintiff's own claims; and the 
notice machinery contemplated by the 
ADEA may further the statute's 
remedial purpose. 25 FEP at 1188.

Pursuant to Niesig, however, all further communications between
these potential plaintiffs and plaintiffs' counsel would have to
be conducted under the watchful eye of corporate counsel, thus
rendering impossible any substantive discussion about strategy or
the strengths and weaknesses of potential claims.

After Niesig, a plaintiff's ability to prove housing dis­
crimination may also be sharply curtailed. Under the testing 
procedure approved by the Supreme Court in Havens Realty v. 
Coleman, 455 U.S. 363 (1982), minority and white housing appli­
cants are sent by a civil rights group to a broker or landlord 
suspected of discrimination. If the white applicants are treated 
more favorably than the minority applicants, a lawsuit may be 
brought. However, under Niesig, communications between the 
testers and the broker's employees would be grounds for disci­
plinary sanctions for plaintiff's counsel, if the broker were 
represented by counsel in any pending litigation.

The Niesig rule would also have a detrimental effect on 
plaintiffs' ability to successfully move for class certification 
under Federal Rule of Civil Procedure 23.2 Under that Rule,

. tSupreme Court has held that it was beyond the power of a 
^ls^ric"t court under the Federal Rules to issue a blanket

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plaintiffs must prove that other affected employees are too 
numerous to be conveniently joined, and that plaintiffs' claims 
are common and typical to those of other potential class mem-

3bers. The same general requirements apply to putative class 
actions brought under CPLR §901. Without discussions with 
potential class members, meaningful investigation may be impos­
sible .

Time and again, the federal and state courts have taken 
judicial notice of the difficulty of proving civil rights cases. 
For example, Justice O'Connor recently observed, "As should be 
apparent, the entire purpose of the McDonnell—Douglas prima facie 
case is to compensate for the fact that direct evidence of 
intentional discrimination is hard to come by." Price Waterhouse
v. Hopkins, __ U.S. __, 109 S.Ct. 1775, 1801-02 (1989) (O'Connor,
J., concurring).

As this Court stated in State Division of Human Rights v. 
Kilian, 35 N.Y.2d 201, 209 (1974), "[d]iscrimination today is 
rarely so obvious, or its practices so overt that recognition of 
the fact is instant and conclusive. One intent on violating the 
Law Against Discrimination cannot be expected to declare or

prohibition on plaintiffs' counsel speaking to prospective 
employee class members in a Title VII action. The Fifth Circuit had reached the same conclusion on the ground that such a 
prohibition would violate the First Amendment. Gulf Oil v. 
Bernard, 452 U.S. 89 (1981), affirming 619 F.2d 459 (5th Cir. 1980)•
For example, the Second Circuit has affirmed a district court 

decision denying class certification because plaintiffs did not 
present a sufficiently detailed showing concerning the specific 
complaints of other class members. Sheehan v. Purolator. Inc.. 
839 F.2d 99 (2d Cir.), cert, den., 109 S.Ct. 226 (1988). L'

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announce his purpose. Far more likely is it that he will pursue 
his discriminatory practice in ways that are devious, by methods 
subtle and elusive —  for we deal with an area in which 
'subtleties of conduct . . .  play no small part. '" By severely 
restricting the ability of civil rights plaintiffs and their 
lawyers to gather necessary evidence, Niesig impedes vigorous 
enforcement of civil rights laws, which the Supreme Court has 
repeatedly deemed a matter of the "highest priority." Alexander 
v. Gardner-Denver. 415 U.S. 35, 47 (1974).

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CONCLUSION

In dismissing out of hand plaintiff's public policy argu­
ments, the Niesig court stated that these arguments are "likely 
to persuade only those who, contrary to the basic axioms of the 
American legal system, believe that one-sided, inquisitorial 
procedures are more effective than adversarial ones in arriving 
at the truth." Niesig, 545 N.Y.S.2d at 161. In fact, the Niesig 
rule, by allowing only corporate counsel to communicate privately 
with employees, sets up a one-sided, inquisitorial system which 
severely weakens enforcement of civil rights laws and which is 
completely antithetical to the American policy of assigning the 
highest priority to civil rights litigation. Therefore, the 
decision of the Appellate Division should be reversed.
Dated: New York, New York Respectfully submitted,May 10, 1990

JULIUS LEVONNE CHAMBERS, ESQ. 
CHARLES STEVEN RALSTON, ESQ.RONALD L. ELLIS, ESQ.
Attorneys for NAACP Legal Defense& Educational Fund99 Hudson Street
New York, New York 10013(212) 219-1900
VANESSA MERTON, ESQ.
Attorney for Plaintiff 
Employment Lawyers Association (New York Chapter)
1740 Broadway, 25th Floor New York, New York 10009 
(212) 489-8230
KIM GANDY, ESQ.
Attorney for National Organization for Women, Inc.
1401 New York Avenue, N.W.Suite 800
Washington, D.C. 20005-2102 (202) 347-2279

-11-



STEEL & BELLMAN, P.C. 
Attorneys for Amici 
351 Broadway 
New York, New York 10013 
(212) 925-7400

On the Brief
MIRIAM F. CLARK 
LEWIS M. STEEL

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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )

ss. :COUNTY OF NEW YORK)
PATRICIA M. COOPER, being duly sworn, deposes and says, I am

not a party to the action, am over 18 years of age and reside at
351 Broadway, New York, New York.

On May 11, 1990, I caused to be personally served the within
Notice of Motion for Leave to Appear as Amici Curiae, supporting
Affirmation, and Brief in Support of Motion for Leave to Appear
as Amici Curiae, by delivery of true copies thereof to each
person named below at the address indicated:

EMILY M. BASS, ESQ.
Attorney for Plaintiff-Appellant 
330 Madison Avenue, 33rd Floor 
New York, New York 10017
PATRICK CROWE, ESQ.
Attorneys for Third Party Defendant- Respondent
De Trae Enterprises, Inc.
McCoy, Agoglia, Beckett & Fassberg, P.C.80 East Old Country Road Mineola, New York 11501
STEVEN K. MANTIONE, ESQ
Attorneys for Defendant Third Party
Plaintiff-Respondent
J.M. Frederick Construction of New York, Inc. Gerard A. Gilbride, Jr.
20 Crossways Park North 
Woodbury, New York 11797



STEVEN A. FRITZ, ESQ.
Attorneys for Defendants Third
Party Plaintiffs-Respondents
Team I, Fred Komson, Mauro Ricchiutti,
Paul Greenblat, Sol Niego and Morton Weber Purcell, Fritz & Ingrao, P.C.204 Willis Avenue 
Mineola, New York 11501

Sworn to before me this 
11th day of May, 1990.

NOTARY PUBLIC

V O A M S N  »0 OJ25S
aavio a wvihiw

Notary © ^ f - C U R K0 o^Yorfc
Q ualified  h  t?;-65 

u’se/on E x p ire s  5 3  Coun?y, >Commisc

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

HAROLD TAYLOR,

- vs -
GENERAL ELECTRIC CORP.,

Plaintiff,

Defendant.

CIV-87-1211L

Take notice of an Order of which the within is 
a copy, duly granted in the wUhin ent.tled act,on ^  the
15th day of March, 1990 and entered in the office

Clerk of the United States District Court, Western
District of New York , on the 15th day of March, 1990.

Rochester, New York 
March 15, 1990

'«■' -1- G IT K.
u. S. District Court

DiStriot °f Ne" 282 U. S. Courthouse 
Rochester, New York 14614

Emmelyn Loaan-Baldwin, Esq Edward Ryan Conan, Esq.

017



UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

HAROLD TAYLOR,
Plaintiff, 

v.
GENERAL ELECTRIC CORP., 

Defendant.

DECISION AND ORDER 
Civ. 37-1211L

By letter dated December 15, 1989, plaintiff's counsel moved 
for permission to conduct ex parte interviews with current and 
former employees of General Electric, on the authority of Jones 
v. Monroe Community College, unpublished decisions of Judge (now 
Chief Judge) Telesca and Judge (then Magistrate) Larimer (Civ. 
84-704T, August 30, 1984 and April 18, 1984). Plaintiff's
counsel commendably identified a New York Appellate Division 
decision prohibiting ex parte current employee interviews on 
ethical grounds, Niesiq v. Team I. 149 A.D.2d 94, 545 N.Y.S.2d 
153 (2d Dept. 1989), but asserted that it "is not controlling in 
this case." Logan-Baldwin letter of December 15, 1989, at p.10.

Defense counsel moves, by letter dated January 4, 1990, 
supplemented by a letter dated January 15, 1990, for a protective 
order prohibiting such interviews of current General Electric 
employees. Fed. R. Civ. P. 26(c). I ordered plaintiff's counsel 
to comply with Niesiq until I determined the merits of the motion 
(docket entry #63). In his January 15th letter, defense counsel 
explicated the Niesiq decision, and argued: "By its terms, the 
holding in Niesiq v- Team I applies to all attorneys who practice 
law in New York State, and is therefore controlling on counsel to

018



No issue is raised with respect to GE's formerthis litigation, 
employees. See Polvcast Technology Corporation v. Uniroval.
Inc.. ___ F. Supp. ___ (S.D.N.Y. February 13, 1990); Amarin
Plastics. Inc, v. Maryland Cup Corporation. 116 F.R.D. 36, 39-41
(D. Mass. 1987); Niesig v. Team I. 149 A.D.2d at 100 n.l.

By letter dated February 15, 1990, plaintiff's counsel 
replies that Niesig may not be applied in this case "to current 
employees of the company where there is a conflict of interest 
between the current employee and the company." (emphasis 
deleted). She contends that all current employees on her list of 
requested depositions have such a conflict, and asserts that "it 
is obvious that Mr. Conan cannot purport to represent them 
because the company interest and the employee interest is in 
conflict."

Plaintiff's counsel attempts to provide "examples of these 
conflicts "by referring to (1) Devora Mclver, who purportedly had 
an affair with plaintiff and has retained her own counsel; (2) 
Geoffrey Burnham and Sue Carmey, who were evidently the subject 
of a report to the Defense Department; and (3) other employees 
who have had some personnel action taken against them by GE. 
Plaintiff's counsel reasons that Mr. Conan cannot, consistent 
with ethical precepts, represent these named employees. She 
means, presumably, that the Niesig rule by its terms could not 
apply to any employee who became the subject of a personnel 
action by the company.

Finally, plaintiff's counsel argues that Niesig "is poorly 
reasoned and absolutely wrong on the law." She further contends

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019



that "[i]t has no application in an employment discrimination 
lawsuit." Logan-Baldwin letter of February 15th, at p. 13. 
Because Niesiq has dramatically changed the legal landscape since 
this district's unpublished decisions six years ago in Jones v. 
Monroe .Community College, supra. a reexamination is in order.
For the following reasons, defendants' motion for a protective 
order should be granted.

A. The Niesiq Decision
Last August, the Appellate Division Second Department issued 

a significant decision interpreting New York's version of DR 7- 
104(A)(1) of the ABA Code of Professional Responsibility as it 
applies to corporate clients. DR 7-104(A)(1) prohibits a lawyer 
who represents a client from "[c]ommunicat[ing] . . .  on the 
subject of the representation with a[nother] party [s]he knows to 
be represented by a lawyer in that matter unless [s]he has the 
prior consent of the lawyer representing such other party or is 
authorized by law to do so." When a corporation is a "party" the 
question arises whether this rule applies to only a small group 
of the company's managers or to all corporate employees.

Hlesig resolved that issue as follows: "We hold that the
terms of DR 7-104(A)(1) may effectively be enforced 'only by 
viewing all present employees of a corporation as parties'"
Niesiq v.— Team 1, 149 A.D.2d at 106 (emphasis in original)
(quoting N.Y. City Opn. 80-46). in particular, Niesiq rejected 
the more recent ABA Model Rules of Professional Conduct, Rule 4.2 
(Comment)(ex parte contact is permissible "with lower echelon 
employees who are not representatives of the organization"), as

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020



-totally unworkable." Id. 149 A.D.2d at 104.1 The court found 
that acceptance of another rule "would engender a significant 
amount of litigation addressed to the question of whether, in 
particular cases, particular corporate employees are or are not 
within the company's 'control group."' Id. 149 A.D.2d at 105.
The court summarized, "In the interest of clarity, then, we 
reject the 'control group' and hold, as has at least one other 
court, that '[i]t is not proper for opposing counsel or its 
investigator to contact ex parte an employee of a corporation 
that is a party to a suit knowing that the information sought 
from the employee relates to a subject of controversy.'" id. 149 
A.D.2d at 106 (quoting Hewlett-Packard Co. v. Superior Cnnrf
iJensen), 252 Cal. Rptr. 14, 16, 205 Cal. App.3d 986, (Cal. App. 
4th Dist. 1988) ) .

0 . . _lv.en interpretation of the revised Comment to Model
U % 4’o ln Technology Corporation v. Uniroval. Inc. .--- . Supp. at — _—  ("the expanded comments to Rule 4.2, . . .were intended to insure that current employees —  whether 

participants or witnesses —  would not be subject to 
in errogation by an adversary's attorney except through formal discovery ), which I accept, the perceived difference is 
academic. In any event, the ABA Model Rules were rejected by the 
ew ork State Bar Association House of Delegates in favor of 

amendments to the existing Code of Professional Responsibility. 
Amendments to the Code were approved by the House of Delegates in 

o!?d4-Were sut)Initted to the four Appellate Divisions of New ork State Supreme Court, which are vested with defining and 
enforcing the standards of Professional Conduct under New York
7^; /2'Y\ J UdlClary Law § 9°(2)- See e.g. . 22 N.Y.C.R.R. Part 1022 (Fourth Department); id. §1022.17 (defining misconduct to 
include a violation of a Disciplinary Rule of the Code of 
ro **®sponsibility) . None of the Amendments proposed

affect DR 7-l04(A)(l). After appointment of the so-called Kane 
ommission, the Appellate Divisions are expected to approve a 

close variant of the proposed amended Code as a court rule.

021



embraced the underlying rationale articulated in that ethics
opinion, which reasons:

It is our opinion, however, that the Code in 
DR 7-104(A)(1) has determined that the 
considerations in favor of permitting a party 
and his client to discover the facts must be 
subordinated to the need to protect an 
adverse lay party from unsupervised 
communications with opposing counsel and the 
need of counsel for the adverse party to 
provide effective representation. Since we 
believe a corporate party is equally entitled 
to the benefit of these policies, we are 
required to shape the scope of DR 7-104(A)(1) 
to assure that the corporation is provided 
the effective representation that the 
disciplinary provision is designed to 
protect.

N.Y. City 80-46 (Part IV, last paragraph). In addition, the
court scrutinized the asserted interest of the plaintiff in
conducting an ex parte interview.

[The rule does] not prohibit plaintiff's 
counsel from interviewing these witnesses; it 
merely prohibit[s] such interview from 
occurring ex parte. Thus, it is clear that 
the interest sought to be advanced by 
plaintiff is not that of obtaining the 
information necessary to prepare for trial, 
but rather, that c obtaining such 
information in a r ticular wav, that is, 
through the procedure of an ex parte 
interview. Once it is seen for what it is, 
the plaintiff's argument that such ex parte 
interviews should be allowed in order to 
advance his "search for the truth" is likely 
to persuade only those who, contrary to the 
basic axioms of the American legal system, 
believe that one-sided, inquisitorial 
procedures are more effective than 
adversarial ones in arriving at the truth.

The real interests which the plaintiff 
seeks to advance in this case are too obvious 
to be concealed by his repeated references to 
"the quest for truth."

By adopting N.Y. City 80-46, supra, the court in Niesjg

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Niesiq v._Team 1. 149 A.D.2d at 107 (emphasis in original).
Finally, the court in Niesiq concluded that, "given the fact that 
attorneys have an obligation not only to avoid engaging in 
conduct which is actually unethical, but also to avoid engaging 
in conduct which even appears to be unethical [citations 
omitted,] [t]he integrity of the legal profession would not be 
well served by the creation of a rule which infuses a substantial 
amount of ambiguity into one of the most important and most 
widely recognized of all ethical precepts [citations omitted]." 
Id. 149 A.D.2d at 108.

B* Enforcement of Ethical Rules in the Federal Courts
Plaintiff contends that Niesiq has no application in an 

employment discrimination case. Defendants contend that Niesiq 
applies to all attorneys in New York State and, ipso facto, 
applies to counsel in this case.

That Niesig applies to attorneys licensed in New York cannot 
be doubted. The Appellate Division of State Supreme Court 
governs professional behavior in New York. N.Y. Judiciary Law 
§ 90(2) . Furthermore, a ruling by one of the four coordinate 
departments of the Appellate Division of State Supreme Court is, 
absent New York Court of Appeals or other Appellate Division 
authority to the contrary, a binding precedent within the state 
court system. Mountain View Coach Lines. Inc, v. Storms. 102 
A.D.2d 663, 664-65, 476 N.Y.S.2d 918 (2d Dept. 1984); Sheridan v. 
Tucker, 145 App. Div. 145, 147 (4th Dept. 1911); 1 Carmody-Wait 
2d' Cyclopedia of New York Practice § 2:58 pp. 69-70, § 2.63 p.75 
(2d ed. 1965) . Niesiq unquestionably applies to New York

6

023



attorneys and a violation of the rule articulated in that case 
may lead to "disqualification [of the attorney], as well as to 
disciplinary sanctions." Niesig v. Team I. 149 A.D.2d at 105.

Whether an authoritative New York judicial interpretation of 
an ethical rule applies to govern conduct of attorneys in federal 
litigation is a more difficult question. The Supreme Court has 
stated, "Federal courts admit and suspend attorneys as an 
exercise of their inherent power; the standards imposed are a 
matter of federal law." In re Snyder. 472 U.S. 634, 645 n.6
(1985).2 Perhaps in recognition of the lack of any comprehensive 
statement or collection of federal professional responsibility 
standards, however, the Court pointed out that "[t]he uniform 
first step for admission to any federal court is admission to a 
state court." Id. Therefore, it is fair for a district court 
"to charge . . .  [a lawyer admitted to practice in that court] 
with the knowledge of and the duty to conform to the state code 
of professional responsibility." Id. In other words, federal 
courts obtain the "[m]ore specific guidance . . . provided by
case law, applicable court rules, and 'the lore of the 
profession' as embodied in codes of professional conduct." Id. 
472 U.S. at 645 (text at fn. 6). Cf., In re Grievance Committee

2 For that proposition, the Court relied on Hertz v. United 
States. 18 F.2d 52, 54-55 (8th Cir. 1927), which rejected an 
argument that a lawyer, charged in federal court with misconduct 
committed in federal court sufficient to warrant disbarment by 
that federal court, was entitled to application of state created 
disbarment procedures prescribing the standards of disbarment and 
an applicable limitations period. The circuit court held that 
"[i]ts power (to admit and disbar attorneys) could be affected 
only by action of Congress and such action has not been taken." 
Id. 18 F.2d at 55.

7

024



of the United States District Court for the District of 
Connecticut, 847 F.2d 57, 61-63 (2d Cir. 1988)(relevant also are
the drafting history of the Code, its structure, and decisions 
from other jurisdictions).

In the Second Circuit, DR 7-104(A)(1) is vigorously applied 
in criminal matters, United States v. Hammad. 858 F.2d 834, 837- 
38 (2d Cir. 1988),3 and there is no reason to believe that it 
has any less effect on civil litigation. See e.q.. W.T. Grant 
Co. v. Haines, 531 F.2d 671, 674 (2d Cir. 1976)(interpreting and 
applying New York's version of DR 7-104(A)(1)); Ceramco. Inc, v. 
Lee Pharmaceuticals. 510 F.2d 268, 270-71 (2d Cir. 1975)

The applicability of DR 7-104(A)(1) to federal 
prosecutors, recently reaffirmed in a policy statement of the 
American Bar Association despite Supremacy Clause objections 
raised by Attorney General Richard Thornburgh, ABA House of 
Delegates Report No. 301 (adopted February 12, 1990, as amended), 
was recently underscored by the four dissenting justices in 
Michigan v. Harvey. 58 U.S.L.W. 4288, 4294 n.12 (March 5,
1990) (Stevens, J., dissenting, joined by Justices Brennan, 
Marshall and Blackmon). In opposition to the ABA resolution, 
Attorney General Thornburgh wrote of the difficulties application of DR 7-104(A)(1) creates when Justice Department Civil division 
attorneys attempt ex parte interviews of corporation employees. 
Nevertheless, the resolution was passed by the House of Delegates 
and endorsed in Justice Stevens' dissent. The majority in Harvey 
did not touch on the matter, perhaps because the issue was not 
raised at the trial level (58 U.S.L.W. at 4288-89), and because 
the Court had earlier determined that DR 7-104(A)(1) "does not 
bear on the constitutional question" raised in Sixth Amendment 
cases- United States v. Henrv. 447 U.S. 264, 275 n.14, 100 S.Ct. 2183, 2189 n.14 (1980)(emphasis supplied. Cf. Patterson v.
Illinois, ___ U.S. ___, 108 S.Ct. 2389, 2393 n.3 (1988); id. 108
S.Ct. at 2399-2400 (Stevens, J., dissenting). Of course federal 
prosecutors have the protection of a federal forum if retaliatory 
state disciplinary charges are brought. Kolibash v. Committee on 
Legal Ethics of the West Virginia Bar. 872 F.2d 571, 575 (4th 
cfr* 1989). Whatever the Supreme Court's view, the rule in this 
circuit, expressed in Hammad. is that DR 7-104(A)(1) does not 
present an impediment to the Supremacy Clause in the area of 
federal criminal investigations. Therefore, it should provide no 
impediment to federal interests in this Title VII litigation.

8

Q25



Lee Pharmaceuticals. 510 F.2d 268, 270-71 (2d Cir. 1975) 
(anonymous phone call to employee of corporate adversary "is not 
to be commended"); Papanicolaou v. Chase Manhattan Bank, N.A.,
720 F. Supp. 1080, 1084 (S.D.N.Y. 1989). As the Second Circuit
has repeatedly recognized, "[t]he Code is recognized by both 
state and federal courts within this circuit as providing 
appropriate guidelines for proper professional behavior." Fund 
of Funds. Ltd, v. Arthur Anderson & Co.. 567 F.2d 225, 227 n.2 
(2d Cir. 1977). See NCK Organization Ltd, v. Brecrman. 542 F.2d 
128, 129 n.2 (2d Cir. 1976); Cinema 5, Ltd, v. Cinerama. Inc..
528 F.2d 1384, 1386 (2d Cir. 1976)("The Code has been adopted by
the New York. State Bar Association, and its canons are recognized 
by both Federal and State Courts as appropriate guidelines for 
the professional conduct of New York lawyers."); Paretti v. 
Cavalier Label Co. . Inc.. 722 F. Supp. 985, 986 (S.D.N.Y. 1989); 
Cresswell v. Sullivan & Cromwell. 704 F. Supp. 392, 400 (S.D.N.Y.
1989)(same). The applicability of the Code in this district is 
clear even if it "has not been formally adopted" in a local rule. 
Hull v. Celanese Corporation. 513 F.2d 568, 571 n.12 (2d Cir. 
1975) .4

4 This treatment contrasts with the Rule elsewhere.
Culebras Enterprises Corporation v. Rivera-Rios. 846 F.2d 94, 98 
(1st Cir. 1988)("absent promulgation by means of a statute or a 
court rule, ethical provisions of the ABA or other groups are not 
legally binding upon practitioners."); E.F. Hutton & Company v. 
Brown. 305 F. Supp. 371, 377 n.7 (S.D. Tex. 1969). The court in 
Culebras Enterprises cited International Electronics Corporation 
v. Flanzer. 527 F.2d 1288, 1293 (2d Cir. 1975) in support of the 
parenthetical quotation, ante. but as is demonstrated in the 
text, infra, Flanzer involves a different and functionally 
unrelated principle.

9

026



That federal courts look to state codes of professional 
conduct in regulating the profession pursuant to their inherent 
or supervisory authority over members of the bar does not 
establish that an authoritative state court interpretation of a 
disciplinary rule will provide an adequate predicate for what is, 
in essence, "a matter of federal law." In re Snyder. 472 U.S. at 
645 n. 6. It is often observed that "[a] federal court is not 
bound to enforce . . .  [a state's] view of what constitutes 
ethical professional conduct." County of Suffolk v. Long Island 
Liqhtinq Co., 710 F. Supp. 1407, 1413-14 (E.D.N.Y. 1988)(and 
cases cited). The applicable rule is not so starkly stated. In 
this circuit, courts "approach the problem" of interpreting the 
Code by "'examining afresh the problems sought to be met by that 
Code, to weigh for itself what those problems are, how real in 
the practical world they are in fact, and whether a mechanical 
and didactic application of the Code to all situations 
automatically might not be productive of more harm than good, by 
requiring the client and the judicial system to sacrifice more 
than the value of the presumed benefits.'" International 
Electronics Corporation v. Flanzer, 527 F.2d 1288, 1293 (2d Cir. 
1975)(quoting Brief Amicus Curiae of the Connecticut Bar 
Association, at p.7, and rejecting "promisciou[s]" use of Canon 
9" as a convenient tool for disqualification when the facts 
simply do not fit within the rubric of other specific ethical and 
disciplinary rules"). On the other hand, recognizing that the 
Code should not be treated as "a statute that we have no right to 
amend" in "an area of uncertainty," courts "should not hesitate

10

027



to enforce it with vigor" when it "applies in an equitable manner 
to the matter before us, " J.P. Foley & Co.. Inc, v.
Vanderbilt. 523 F.2d 1357, 1359-60 (2d Cir. 1975)(Gurfein, J., 
concurring). See Tessier v. Plastic Surgery Specialists. Inc..
___ F. Supp. ___, ___ n.4 (E.D. Va. February 22, 1990); Polyeast
Technology Corporation v. Uniroyal, Inc.. ___ F. Supp. at ___.
Contrast United Sewerage Agency of Washington County, Oregon v. 
Jelco Incorporated. 646 F.2d 1339, 1342 n.l (9th Cir.
1981)(rejecting the independent federal interest in ethics code 
interpretation for cases involving a federal district court rule 
which adopts a state ethics code) .

As indicated by the Second Circuit authority cited in the
preceding two paragraphs, federal courts rarely attempt a
separate delineation of ethical rules which differ from the
primary work of the state bar associations as adopted by the
state courts. The Supreme Court has emphasized:

Since the founding of the Republic, the 
licensing and regulation of lawyers has been 
left exclusively to the states and the 
District of Columbia within their respective 
jurisdictions. The States prescribe the 
qualifications for admission to practice and 
the standards of professional conduct. They 
are also responsible for the discipline of lawyers.

Leis v. Flynt. 439 U.S. 438, 442 (1979). It is this historical 
fact which the Supreme Court had in mind when it recognized that, 
even if "federal law" is applied, the primary source of federal 
ethics law is the state codes of professional responsibility. In 
re Snyder. 472 U.S. at 645 n.6.

11

028



Unthinking or arbitrary divergence from a state imposed 
standard of ethical conduct would also upset the delicate balance 
between state and federal courts in administering standards of 
Professional behavior to those who practice in these respective 
courts. The federal cases which champion a divergent federal 
standard of professional responsibility generally fall into two 
categories. The first category involves state regulation 
inimical to federal constitutional or statutory interests. See
Barnard v. Thorstein, ___ U.S. ___, 109 S.Ct. 1294, 1299-1302
(1989)(Privileges and Immunities Clause)(collecting cases);
Shapero v._Kentucky Bar Association, ___ U.S. , 108 S.Ct.
1916, 1921-25 (1988)(First Amendment)(collecting cases); Goldfarb 
— — State Bar, 421 U.S. 773 (1975) (antitrust statute);
County of Suffolk v._Long Island Lighting Company. 710 F. Supp.
at 1414-15 (federal class action device and RICO). Even in this 
line of cases, with perhaps the exclusion of Long Island 
Lighting, the deference accorded to the state's interest in 
regulating the bar is substantial; invalidation of particular 
state regulations occurs in the clear cases. Board of Trustees
of the State of New York v. Fox. ___ U.S. ___, 109 S.Ct. 3028,
3034 (1989)("None of our cases invalidating the regulation of 
commercial speech involved a provision that went only marginally 
beyond what would adequately have served the governmental 
interest. To the contrary, almost all of the restrictions 
disallowed . . . have been substantially excessive, disregarding 
'far less restrictive and more precise means.'")(quoting Shapero 
— Kentucky—Bar Association. 108 S.Ct. at 1923) ; Supreme Court of

12

029



Virginia v. Friedman. ___ U.S. ___, 108 S.Ct. 2260, 2265-67
(1988)(even if a bar regulation "burden[s]" a constitutionally 
protected interest, it may be upheld if "substantial reasons 
exist" for the regulation and, "within the full panoply of 
legislative choices otherwise available to the state, there exist 
[only more burdensome] alternative means of furthering the 
State's purpose without implicating constitutional concerns");5 
Supreme Court of New Hampshire v. Piper. 470 U.S. 274, 284-87 
(1985) (same) ; cf. _id. 470 U.S. 283 n.16 (constitutionally imposed 
non-discriminatory bar admission requirements leave the state 
free to apply "the full force of . . . [its] disciplinary rules"
upon out of state admittees); District of Columbia Court of 
Appeals v. Feldman. 460 U.S. 462, 482-83 n.16 (1983)("strength of 
the state interest in regulating the state bar"); Goldfarb v. 
Virginia State, 470 U.S. at 792-93 (same).

The second category may fairly be described as involving an 
insufficiently exacting state ethical rule which, if applied in 
the federal litigation at hand, threatened the integrity of the 
adversary process, see Cord v. Smith. 338 F.2d 516, 524-25 (9th

1964) (state rule arguably more lenient than appropriate to 
excuse a former client conflict of interest), modified on other 
qrounds, 370 F.2d 418 (9th Cir. 1966), overruled for districts 
adopting a state ethics code. Unified Sewerage Agency v. Jelco 
Incorporated, 646 F.2d at 1342 n.l; Hertz v. United States. 18

This "less restrictive means" test was loosened somewhat 
in Board of Trustees of the State of New York v. Fox. 109 S.Ct. at 3032-35.

13
030



F.2d at 54-55 (state statute of limitations for disbarment 
proceedings is insufficient to protect federal proceedings from 
obvious professional misconduct evidencing moral fitness for the 
federal bar), or as involving an antiquated state standard which, 
according to modern authority, needlessly required 
disqualification of counsel or invalidation of counsel's 
arrangements with the client. County of Suffolk v. Long Island 
Lighting Company. 710 F. Supp. at 1413-14; Figueroa-Olma v. 
Westinghouse Electric Corn.. 616 F. Supp. 1445, 1450 (D.C. Puerto 
Rico 1985); Black v. State of Missouri. 492 F. Supp. 848, 874-75 
(W.D. Mo. 1980). While it may be debatable whether any of these 
latter decisions may be appropriately categorized, it is enough 
to say here that the circumstances with impelled those decisions 
are not present here. In addition, contrary to those federal 
cases which tend to embrace the most recent bar association 
efforts at ethics restatement, courts in the Second Circuit have 
accorded considerable deference to New York's version of the Code 
of Professional Responsibility in the face of recent promulgation 
by several states of the ABA Model Rules of Professional Conduct. 
United States v. Hammad. 858 F.2d at 837; United States v. Kwang 
Fu Peng, 766 F.2d 82, 86 n.l (2d Cir. 1985); Polvcast Technology
Corporation v. Uniroyal, Inc.. ___ F. Supp. at ___ ("It seems
best to . . . [look to] those ethical guidelines which have not

14

031



only been promulgated by the bar associations but have also 
received the imprimatur of the State.")6

Recognizing that Niesiq fully applies to New York lawyers 
and that it will provide an adequate predicate for attorney 
"disqualification, as well as . . . disciplinary sanctions" in
the New York courts, Niesiq v. Team I. 149 A.D.2d at 105, brings 
fully into focus the likely collision between federal and state 
interests implementation of a different federal standard may 
create. Those cases which stress federal autonomy in defining 
professional misconduct recognize, sometimes only implicitly, 
that a state is free to enforce its ethical rules consistent with 
the Supremacy Clause unless to do so would frustrate a federal 
constitutional or statutory policy, or would interfere with 
"vindication of the specific federal rights in question." County 
of Suffolk v. Long Island Lighting Co.. 710 F. Supp. at 1415.
See also, Mason v. Departmental Disciplinary Committee. 894 F.2d 
512 (2d Cir. 1990)("If it should develop that a letter of caution 
is issued under circumstances where such action impairs Mason's 
federal rights,, we are not foreclosing federal court scrutiny."); 
Person v. Association of the Bar of the City of New York. 554 
F.2d 534, 538-39 & n.9 (2d Cir. 1977)(federal scrutiny not 
appropriate where a disciplinary rule has only a "remote" effect

Although Polycast Technology, as other cases from the 
districts downstate involved a local rule incorporation of New 
York's code, and although the Western District has not similarly 
incorporated the New York Code of Professional Responsibility, it 
is worth noting again that the Second Circuit has recognized the 
Code's applicability despite the absence of a local rule. Hull 
v. Celanese Corporation. 513 F.2d at 571 n.12.

15

032



on an asserted federal interest), cert, denied. 434 U.S. 924, 98 
S.Ct. 403 (1977) .

Thus, if no countervailing federal interest is compromised, 
departure from an authoritative state court interpretation of DR 
7-104(A)(1) would put federal courts at odds with their state 
court counterparts, and subject lawyers practicing in New York to 
the undesirable juxtaposition of substantially different ethical 
rules in a frequently recurring and important area of 
professional responsibility. Adhering to New York's 
interpretation of the Code where it "applies in an equitable 
manner to a matter before us," J.P. Folev & Cn.. Inc, v. 
Vanderbilt, 523 F.2d at 1360 (Gurfein, J., concurring), thus 
"avoids subjecting attorneys to potentially inconsistent sets of 
ethical requirements in the state and federal courts within the 
same geographic area." Polycast Technology Corporation v. 
Uniroval. Inc.f ___ F. Supp. at .7

is true th.at an attorney disobeying Niesia in reliance on a federal court interpretation may attempt to rely on the 
authorized by law" exception to DR 7-104( A ) m . See United

gtates v. Schwimmer, 882 F.2d 22, 28 (2d Cir. l989T7~ci^t:--
enie , --  U.S. --- llo S.Ct. 1114 (1990); Morrison v. Brandei*?

yniysrsity, 125 F.R.D. 14, 15 (D. Mass. 1989)7^ But this solution 
to the federal-state conflict created by a differing federal 
court interpretation is undesirable, at least, and would leave 
attorneys with competing rules to be applied according to the 
litiSItiSnfortuitous circumstance of the forum chosen for the
bi United s t a t L ^  S ln Polycast Technology, and as illustratedStates v. Hammad, supra, the avoidance of conflicting 

k Professional responsibility "is particularly
is andC? h r / any ^thical ™ les aPPly even before a n actionis filed and the forum designated." Polycast Technology
Corporation v. Uniroval. Tnr., ___ F.“supp. at 7 Also the
disi?if?ratlSn of jusJice' particularly in matters of attorney discipline, demands wherever possible a uniform set of ethical
5V e?’ . faith in the fair administration of attorney
discipline would be compromised by the juxtaposition of competing 
rules and the divergent results issuing from coordinate jurisdictions in like circumstances.

16 033



Plaintiff's motion for permission to conduct ex parte 
interviews with GE's current employees, therefore, requires an 
examination of whether any countervailing federal interest 
militates against enforcement of New York's DR 7-104(A)(1). I 
conclude that there are none.

The advantages of ex parte or informal witness interviews to
trial counsel may be briefly summarized.

A lawyer talks to a witness to ascertain 
what, if any, information the witness may 
have relevant to h[er] theory of the case, 
and to explore the witness' knowledge, memory 
and opinion —  frequently in light of 
information counsel may have developed from 
other sources. This is part of an attorney's 
so-called work product [citing Hickman v.
Tavlor. 329 U.S. 495 (1947)]

* * *

We believe that the restrictions on 
interviewing set by trial judge [which 
prohibited ex parte interviews of witness in 
the absence of a court reporter "so that it 
can be available to the Court, for the Court 
to see it"] exceeded his authority. They not 
only impair the constitutional right to 
effective assistance of counsel but are 
contrary to time-honored and decision-honored 
principles, namely, that counsel for all 
parties have a right to interview an adverse 
party's witnesses (the witness willing) in 
private, without the presence or consent of 
opposing counsel and without a transcript 
being made.

*  *  *

The legitimate need for confidentiality in 
the conduct of attorneys' interviews, with 
the goals of maximizing unhampered access to 
information and insuring the presentation of 
the best possible case at trial, was given 
definitive recognition by the Supreme Court 
in Hickman v. Tavlor. 329 U.S. 495 (1947) .

* *  *

17

034



Building on the rationale of Hickman, courts 
have also specifically forbidden interference 
with the preparation of a client's defense by 
restricting his counsel's ability to freely 
interview witnesses willing to speak with h[er].

International Business Machines Corporation v. Edel^t^in, 526 
F.2d 37, 41 43 (2d Cir. 1975)(emphasis and bracketed material in 
original). These considerations, of course, apply to witness 
interviews, not ex parte interviews with an opposing party. when 
a party is the subject of the interview, the interests sought to 
be protected by DR 7-l04(A)(l), specifically the right to 
effective representation, fully outweigh the interest in 
unrestricted access to information. Access to information is not 
prevented by DR 7-104(A)(1). Information may be obtained from a
party if the party's right to effective representation is 
honored.

The considerations articulated in IBM v. Edelstein, supra, 
have been employed by some courts in holding that DR 7-104(A)(1) 
does not forbid informal interviews with corporate employees of 
the opposing party. see e^., Morrison v. Brandeis University 
125 F.R.D. at 18-19 (''tendency which the presence of opposing 
counsel has to inhibit the free and open discussion which an 
attorney seeks to achieve at such interviews"); Frev v. 
Department of Health and Human S e r v i ^  l06 F.R.D. 32, 36 
(S.D.N.Y. 1985)("to permit the SSA to barricade huge numbers of 
potential witnesses from interviews except through costly 
discovery procedures, may well frustrate the right of an 
individual plaintiff with limited resources to a fair trial and

18

035



deter other litigants from pursuing their legal remedies"). The 
difficulty with these discussions is that they fail to identify, 
perhaps because the issue has rarely been appreciated in light of 
Supremacy Clause or federalism considerations, the precise 
federal right impaired by application of the rule embraced by 
Niesig. Federal courts unquestionably recognize a federal 
litigant's right to unrestricted access to information, IBM v. 
Edelstein, supra, but federal courts also fully embrace the view 
that this "right" has limits which are, in part, defined by the 
prohibition of DR 7-l04(A)(l). United States v. Hammad. 858 F.2d 
at 837 ("lawyers are constrained to communicate indirectly with 
adverse parties through opposing counsel"). Given New York's 
interpretation of DR 7-104(A)(1) to encompass corporate employees 
having knowledge of the subject of the lawsuit, Niesig v. Team I. 
149 A .D.2d at 106, the apt task is to discern whether there is 
any discrete federal interest requiring, in this court, a 
different interpretation. More precisely, the issue is whether 
the marginal restriction of access to information imposed by 
Niesig burdens a federally protected right.

New York has answered the question forthrightly. In Niesig. 
the court emphasized that informal interviews are not prohibited 
by its interpretation of DR 7-104(A)(1). Counsel are free to 
solicit informal interviews under the conditions set forth in the 
disciplinary rule (consent of opposing counsel or as authorized 
by law) and may speak with the corporate employee freely during 
an authorized interview. Niesig v. Team I. 149 A.D.2d at 106-07. 
In answer to the argument of Frev v. Department of Health & Human

19

036



Services, _supra (also made in Morrison v. Brandeis University,, 
supra) that the presence of opposing counsel inhibits free and 
open discussion, the New York court held that such an argument 
"is likely to persuade only those who, contrary to the basic 
axioms of the American legal system, believe that one-sided, 
inquisitorial procedures are more effective than adversarial ones 
in arriving at the truth." Niesia v. Team I. 149 A.D.2d 107. I 
would venture even further; the simple presence of opposing 
counsel at an informal interview of a corporate employee, or the 
availability to corporate counsel of prior notice of the proposed 
interview and the prior opportunity to consult with the employee, 
cannot be deemed to inhibit free access to information except if 
(1) it is assumed that the employee will not come clean and tell 
the truth even if put to sworn testimony in a subsequent 
deposition, (2) the employee will remain still notwithstanding 
Title VII's prohibition of retaliation for statutorily protected 
conduct, 42 U.S.C. § 2000e-3(a); Jenkins v. Orkin Exterminating 
Co., Inc., 646 F. Supp. 1274 (E.D. Tex. 1986); United States v. 
City of Milwaukee, 390 F. Supp. 1126 (E.D. Wis. 1975), and (3) it 
is assumed that opposing counsel will violate the general 
prohibition against obstructing access to evidence. See D.R. 7— 
109(A)-(C); DR 7-l02(A)(6); C. Wolfram, Modern Legal Ethics.
§ 12.4.1, at 646-50 (1986) (collecting authorities); G. Hazard &
W. Hodes, The Law of Lawyering. 369-86 (1988 Supp.) These 
assumptions are not warranted. Accordingly, it would be 
improvident to predicate a differing federal rule upon such

20

037



tenuous conclusions, which are derived, necessarily, upon a 
presumption of attorney bad faith and witness intransigency.

The other major objection articulated in Frey was the 
asserted increased expense to individual plaintiffs formal 
discovery procedures would entail. Frey v. Department of Health 
& Human Services. 106 F.R.D. at 36. Application of the Niesiq 
rule does not mean, however, that formal discovery procedures, 
such as a deposition, need be employed in every case of an 
employee interview. Niesiq only requires that the corporate 
attorney be given the opportunity to exercise an option whether 
to attend the interview, not that a deposition need be conducted. 
In addition, the corollary of sensible application of Niesiq is a 
rule which prevents corporate counsel from unreasonably 
withholding consent to the interview whether in counsel's 
presence or otherwise. Therefore, the marginal increased 
expense, if any, accrues to the corporate party only. The court 
in Niesiq assumed that increased expense would accrue to an 
individual plaintiff, and discounted the matter. Niesiq v. Team 
I, 149 A.D.2d at 107. I conclude that the financial 
consideration is marginal, at best, and substantially ameliorated 
by the provision of counsel fees for a successful plaintiff. 42 
U.S.C. § 2000e-5(k); See also, 42 U.S.C. § 1988.

The case of New York State Association for Retarded Children 
v. Carey, 706 F.2d 956 (2d Cir. 1983), cert, denied. 464 U.S.
915, 104 S.Ct. 277 (1983) is not to the contrary. In that case, 
the Second Circuit approved of a discovery order tailored to the 
specific needs of the case which permitted plaintiff's counsel to 
tour a governmental facility and interview the facility's

21 038



employees outside the presence of defense counsel. This case 
involves a private corporate party. Niesiq. which purported to 
apply N.Y. City 80-46, must also be taken to embrace the 
statement in that City Bar opinion that "we do not address the 
scope of DR 7—104(A)(1) where a governmental, as opposed to a 
private, party is involved." N.Y. City 80-46 (Part II at last 
sentence, fn.). See also, Mompoint v. Lotus Development 
Corporation, 110 F.R.D. 414, 417-18 (D. Mass. 1986). Thus, 
application of Niesiq to this litigation involving General 
Electric contravenes none of the divergent interests applicable 
to governmental entities. Indeed, if Niesiq was applicable to 
the situation in Carey. it would require no more than that 
defense counsel be given the option to join the tour.

In short, application of Niesiq would not lead to an 
abridgement of any federally protected right, nor does it appear 
that the rule of Niesiq would lead to an "[in]equitable" result.
-•R•— Foley & Co. ,_Inc, v. Vanderbilt. 523 F.2d at 1360 (Gurfein,
J., concurring). No good reason exists to create a differing 
federal standard. Although it is not necessary to a decision, it 
should be noted that Niesiq was endorsed as "a very well 
ar^lculated and persuasive" holding in Cagquila v. Wyeth 
Laboratories, Inc., 127 F.R.D. 653, 654 n.2 (E.D. Pa. 1989), and 
that it was cited approvingly by a district court in this Circuit 
for the proposition that violating DR 7-104(A)(1) will lead to 
disqualification or sanctions. Papanicolaou v. Chase Manhattan 
Bank,— N.A., 720 F. Supp. at 1085 n.ll. In Polvcast Technology
Corporation v._Uniroyal. Inc.P supra. which involved an issue of
former employee contracts, Niesiq was seen as consistent with the

22 039



court's interpretation of the "expanded comments" to ABA Model
Rule 4.2. Id. ___ F. Supp. at ___. The interests of federalism
and comity in matters such as these which is expressed in cases 
recognizing the state's "substantial interest in regulating the 
practice of law within the state . . .  in the absence of federal 
legislation" requiring different treatment, Sperry v. State of 
Florida. 373 U.S. 379, 383-84 (1963), are served by recognition
of and deference to New York's interpretation of DR 7-104(A)(l). 
Cf. Nix v. Whiteside. 475 U.S. 157, 165-66, 106 S.Ct. 988, 993 
(1986)("a court must be careful not to narrow the wide range of 
conduct acceptable under the . . . [Constitution] so
restrictively as to constitutionalize particular standards of 
professional conduct and thereby intrude into the state's proper 
authority to define and apply the standards of professional 
conduct applicable to those it admits to practice in its 
courts").8

8 There is an alternative mode of analysis which produces 
the same result, even if information access may be said to be 
impeded by application of DR 7-104(A)(1). For those districts 
which have approved a local rule which incorporates New York's 
Code of Professional Responsibility, there is no Supremacy Clause 
problem created by enforcement of DR 7-104(A)(1) "because by its 
incorporation into the local rules, [it] has become federal law." 
United States v. Klubock. 832 F.2d 649, 651 (1st Cir. 1987), 
aff'd en banc. 832 F.2d 664 (1st Cir. 1987)(equally divided 
court). In this circuit, this principle would apply even in the 
absence of a local rule. Hull v. Celanese Corporation. 513 F.2d 
at 571 n.12. Accordingly, in the absence of a finding that the 
state's interpretation of DR 7-104(A)(l) would lead to 
inequitable results, there is no independent need to address the 
Supremacy Clause issue. Indeed, the Ninth Circuit has rejected 
the view that federal courts need to make an independent federal 
interpretation of the Code in a district which formally adopts a 
state ethics code. United Sewerage Agency of Washington County j_ 
Oregon v. Jelco Incorporated. 646 F.2d at 1342 n.l.

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D. The Conflict of Interest Problem
Plaintiff's counsel places substantial emphasis on the 

statement in Ni.esig that the corporate attorneys "are in 
connection with the present litigation, holding themselves out as 
attorneys for DeTrae's employees, as well as for DeTrae itself, 
and absent a conflict of some sort, this is entirely proper."
149 A .D.2d at 101-02. The identification by plaintiff's counsel 
of purported conflicts of interest, described in her letter and 
quoted at the outset of this opinion, however, is entirely too 
broad. m  essence, it is argued that a prohibited conflict 
arises whenever a corporate party takes any personnel action 
against an employee sought to be interviewed by plaintiff.

It is unquestionably true that, in litigation involving 
multiple representation of a corporate and individual client, 
where both are parties to an action or potential parties, a 
conflict of interest may arise requiring disqualification of 
counsel. Dunton v. County of Suffolk. 729 F.2d 903, 907-10 (2d 
Cir. 1984), amended 748 F.2d 69 (2d Cir. 1984). Compare Coleman 
~ — Smith, 814 F.2d 1142 (7th Cir. 1986). Plaintiff does not 
allege, however, that any of the individuals who have an asserted 
conflict of interest are currently engaged in litigation against 
General Electric, nor indeed is there an allegation that these 
individuals are currently engaged in any adversary disciplinary 
process administered by General Electric's personnel department, 
substantially related to this litigation. Cf. Gluek v. Jonathan 
— qan> Inc-' 653 F*2d 746' 749 (2d Cir. 1981); Cinema S. T.M. „

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Cinerama. 528 F.2d 1384, 1386 (2d Cir. 1976). N.Y. State 580
(1987) .

The standards governing conflict of interest are contained 
in D.R. 5—105(A),(C) of the Code of Professional Responsibility. 
There is no basis to conclude that the standards of those 
disciplinary rules are invoked by the simple existence of a past 
personnel action taken against a particular employee whom 
plaintiff's counsel wishes to interview. The language in Niesig 
that corporate counsel is holding himself out as an attorney for 
the corporate employee is, perhaps, unfortunate. A more precise 
formulation would be that GE's corporate counsel is, by asserting 
the interests contained in D.R. 7-104(A)(1) as interpreted in 
Niesig. holding himself out as an attorney for the corporation, 
and that effective representation of the corporate entity itself 
cannot, consistent with Niesig1s rationale, occur without an 
entreaty to corporate counsel which gives him the opportunity to 
be present during the requested informal interview. It is the 
effective representation of the corporation itself which Niesig 
seeks to vindicate, not representation of any individual 
corporate employee. Accordingly, plaintiff cannot avoid 
application of the Niesig rule on a record as scanty as this by 
reference, simply to an asserted personnel action taken against a 
corporate employee sought to be interviewed.

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CONCLUSION
Plaintiff's motion for permission to conduct ex parte 

interviews with General Electric employees is denied. General 
Electric's motion for a protective order pursuant to Fed. R. civ 
P. 26(c) is granted consistent with this opinion. Consistent 
with Nieseq v. Team I. 149 A.D.2d at 106, it is not proper to 
contact ex parte an employee of General Electric for the purpose 
of eliciting from such employee information which relates to the 
subject of this lawsuit. See Stahl, Ex Parte Interviews with 
Enterprise Employees: A Post-Upiohn Analysis. 44 Wash. & Lee L. 
Rev. 1181, 1227 (1987).

SO ORDERED.

UNITED STATES MAGISTRATE
Dated: Rochester, New York

March j , 1990

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043