8 N.Y.3d 506 (2007)
Adversary counsel may conduct ex parte interviews of an opposing party’s former employee, so long as measures are taken to avoid eliciting privileged or confidential information.
Summary
This case addresses whether Intuit’s attorneys should be disqualified from representing Intuit because they conducted an ex parte interview with a former employee of Muriel Siebert & Co. (Siebert) who had been involved in the underlying litigation. The New York Court of Appeals held that disqualification was not warranted because Intuit’s attorneys had cautioned the former employee against disclosing privileged information, and no such information was disclosed. The court emphasized the importance of informal discovery while also underscoring the need to safeguard attorney-client privilege.
Facts
Siebert and Intuit entered into a strategic alliance to create an Internet brokerage service. A dispute arose, and Siebert sued Intuit. Nicholas Dermigny, an executive at Siebert and part of Siebert’s litigation team, was terminated. Intuit’s attorneys, without Siebert’s consent, contacted and interviewed Dermigny after advising him not to disclose privileged or confidential information. Siebert sought to disqualify Intuit’s counsel, arguing an appearance of impropriety.
Procedural History
The Supreme Court granted Siebert’s motion, disqualifying Intuit’s attorneys. The Appellate Division reversed, finding no basis for disqualification because Intuit’s attorneys cautioned Dermigny against disclosing privileged information and no such information was disclosed. The New York Court of Appeals granted leave to appeal.
Issue(s)
Whether Intuit’s attorneys should be disqualified from representing Intuit in a lawsuit brought by Siebert because they conducted an ex parte interview with Siebert’s former employee who possessed privileged information about the litigation.
Holding
No, because Intuit’s attorneys cautioned the former employee against disclosing privileged information and, based on the record, no privileged information was disclosed.
Court’s Reasoning
The Court of Appeals relied on its prior decision in Niesig v. Team I, which addressed ex parte communications with current employees. The court extended the principles of Niesig to former employees, holding that ex parte interviews are permissible as long as counsel takes measures to avoid eliciting privileged or confidential information. The court emphasized the importance of informal discovery in resolving claims promptly. The court stated, “so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee.”
The court cautioned that the right to conduct ex parte interviews is not a license to elicit privileged information. Attorneys must still conform to ethical standards. In this case, Intuit’s attorneys properly advised Dermigny of their representation and interest in the litigation and directed him to avoid disclosing privileged information. Because no such information was disclosed, there was no basis for disqualification.
The court noted, “Counsel must still conform to all applicable ethical standards when conducting such interviews (see e.g. Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)]; Niesig, 76 NY2d at 376…).”