Niesig v. Team I

558 N.E.2d 1030 (1990)

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Nature of the Case

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Facts

P was injured when he fell from scaffolding at a building construction site. At the time of the accident, he was employed by DeTrae. J.M. Frederick (D) was the general contractor and D the property owner. P sued Ds who impleaded DeTrae. P moved for permission to have his counsel conduct ex parte interviews of all DeTrae employees who were on the site at the time of the accident, arguing that these witnesses to the event were neither managerial nor controlling employees and could not, therefore, be considered 'personal synonyms for DeTrae.' D asserted that the disciplinary rule barred unapproved contact by P's lawyer with any of its employees. The Supreme Court agreed and the Appellate Division modified by limiting the ban to DeTrae's current employees. The Appellate Division held that current employees of a corporate defendant in litigation 'are presumptively within the scope of the representation afforded by the attorneys who appeared [in the litigation] on behalf of that corporation.' It held that the corporation had an attorney-client relationship with every employee connected with the subject of the litigation and that the prohibition is necessitated by the practical difficulties of distinguishing between a corporation's control group and its other employees. P appealed.