The opinion of the court was delivered by: Judge Watson
In this employment discrimination case, an issue has arisen concerning the ability of counsel for plaintiff, Jana Wasmer, to interview an ODRC employee, Captain Diane Eaches. The matter was discussed during a telephone conversation, following which each party was given the opportunity to file a memorandum on the question of whether such an ex parte interview was permitted by the applicable ethical rules. Those memoranda (documents #34, #35, & #36) have now been filed. For the following reasons, the Court concludes that Ms. Wasmer's counsel may interview Captain Eaches without violating Rule 4.2 of the Ohio Rules of Professional Conduct.
There are only a few facts important to the Court's decision. Although the parties have not created an independent factual record concerning the motion, the following facts appear to be undisputed. Ms. Wasmer's complaint alleges that she was passed over for promotion in February, 2003 in favor of a less-qualified male officer. She also asserts that she was subjected to sexual harassment in the workplace. In 2003, Captain Eaches was also a lieutenant at the Ohio Reformatory for Women and a candidate for the same promotion. Ms. Eaches was subsequently promoted to the rank of captain.
According to the ODRC, although a captain is not the highest-ranking administrative official at a state prison (presumably that responsibility falls to the warden), a captain is responsible for operations at the institution during his or her shift. They supervise all lower level supervisors and corrections staff and are therefore managerial employees. They have occasion both to contact and to obtain direction from in-house legal counsel.
Because then-Lieutenant Eaches was not a decision-making official responsible for promotions to the rank of captain in 2003, it does not appear that she was involved in the facts and circumstances underlying Ms. Wasmer's discrimination claim other than as a potential witness. However, Ms. Wasmer also claims that other promotions after that date, and perhaps other actions taken within the ORW, are evidence of both discrimination and sexual harassment. According to defendants, Captain Eaches may have participated in some way in the decision-making process with respect to those promotions and she may have been a shift commander while some claimed act of sexual harassment took place, although there is no evidence to support a direct connection either between any action of Captain Eaches and any promotion decision at issue in this case or any alleged act of sexual harassment. It is with these facts in mind that the current matter will be resolved.
Effective February 1, 2007, Ohio adopted new ethical rules, replacing the prior Code of Professional Responsibility with the Ohio Rules of Professional Conduct. Although these rules are new to Ohio, they are either identical to or adapted from the American Bar Association Model Rules of Professional Conduct and similar rules have been in effect in other jurisdictions for some period of time. The Court's analysis of the reach of Rule 4.2 will necessarily depend upon persuasive decisions from other jurisdictions because the Ohio courts have not yet had an opportunity to interpret that rule.
The Rules of Professional Conduct are somewhat similar in structure to the Code of Professional Responsibility in that they contain both mandatory rules of conduct and explanatory materials such as comments and comparisons. Clearly, any analysis of the rule relating to communication with persons represented by counsel (Rule 4.2) should start with the text of the rule itself.
Rule 4.2 consists of a single sentence:
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 to do so by law or a court order.
This language does not directly address the oft-debated question of which persons employed by an organizational party fall within the scope of the prohibition against ex parte communication. Comment  to Rule 4.2 is designed to flesh out this issue. It states that the rule "prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter" or a constituent who "has authority to obligate the organization with respect to the matter." Finally, constituents (presumably employees) "whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability" also may not be contacted by opposing counsel. Comment  allows a lawyer who is uncertain about whether a specific communication would violate Rule 4.2 to seek a court order clarifying his or her professional obligations. Finally, the comparison note relating to the Ohio Code of Professional Responsibility indicates that Rule 4.2 is analogous to DR 7-104(A)(1).
As an initial matter, the Court notes that there may be some question about the binding nature of Comment . Although Comment  appears to have been approved by the Ohio Supreme Court, in contrast to portions of some rules and comments proposed by the ABA which were designated as [RESERVED], that does not necessarily mean that the Ohio Supreme Court would give the comment the force of a rule. Courts in a number of other jurisdictions have concluded that it is the text of the rule itself rather than the comment which controls and which provides the ultimate guidance to courts seeking to determine the scope of the prohibition set forth in Rule 4.2. See, e.g., Palmer v. Pioneer and Associates, 338 F.3d 981 (9th Cir. 2003) (discussing Nevada law which provides that the text of the rule is authoritative and the comments are merely guides to interpretation); see also Jones v. Robanco, Ltd., 2006 WL 2401270 (W.D. Wash. August 18, 2006) (discussing Washington law). In the absence of any guidance from the Ohio courts, however, this Court will presume that Comment  will be deemed persuasive if not authoritative on the issue of which contacts with representatives of organizational parties are prohibited and which are permitted.
The first category of persons with whom ex parte contact may not be made are those who supervise, direct, or regularly consult with the organization's counsel "concerning the matter...." It seems clear from the text of Rule 4.2 that the "matter" to which Comment  refers is the subject about which counsel who seek to conduct the ex parte interview represent their own client. In this case, therefore, the "matter" at issue consists of Ms. Wasmer's claims of discrimination and sexual harassment and the litigation which has arisen out of those claims. ODRC has neither alleged or provided any evidence that Captain Eaches supervises, directs, or regularly consults with ODRC's counsel concerning this case or Ms. Wasmer's claims. The assertion that, as a shift supervisor or captain, she has occasion at times to consult with ODRC's in-house counsel about matters relating to her job duties is not the same as having the responsibility to supervise, direct, or consult regularly with the counsel who are handling this litigation. If those two concepts were equated, any organizational employee who might, for any ...