Gaylard v. Homemakers Of Montgomery, Inc.

675 So. 2d 363 (Ala. 1996)

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Nature of the Case

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Facts

P contracted with D to provide home health care services, including the periodic bathing. An employee of D, Dorothy Taylor, was giving P a bath and allegedly burned her with hot water. P was subsequently hospitalized and suffered pain, discomfort, mental anguish, and emotional distress. P’s attorney telephoned Taylor and recorded the ensuing conversation, without informing Taylor that it was being recorded. Taylor refused to talk, but after the attorney persisted, Taylor began answering questions. Subsequently, P sued D. During Taylor's deposition and during the trial, she testified that she did not regulate the faucets or the water temperature while attending P. At trial, Taylor testified that P had not complained about the alleged burns until at least the following Monday, December 21. P moved to introduce the recordings to contradict the testimony as a prior inconsistent statement on cross-examination. D filed a motion in limine to prevent P from introducing the recorded statement. D claimed that P was in violation of Professional Conduct rule 4.2. 'In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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.' The circuit court granted D's motion. P lost the verdict and appealed. P contends that because the recorded conversation occurred before her attorney had any indication that D had retained counsel to represent it, her attorney's actions were not unethical and did not violate the Rules of Professional Conduct. P also argues that even if the attorney's actions violated Rule 4.2, the rule is an internal bar regulation that should not affect the admissibility of the recorded statement.