An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference with Former Employee Non-Disclosure Agreements and the Threat of Disqualification, Part I & Part II
Nebraska Law Review, Vol. 90, p. 141, 2011
131 Pages Posted: 7 Oct 2010 Last revised: 20 Oct 2011
Date Written: September 9, 2010
The Model Rule 4.4 prohibition on the use of methods of obtaining evidence that violate the rights of third parties can be read to prohibit the informal questioning of a former employee with a non-disclosure agreement to advance a proposed or pending lawsuit, as this may constitute the tort of intentional interference with contract. The use of non-disclosure agreements is proliferating and, although actual tort liability in this context has hardly ever been litigated, it is easy to strategically use this tort to allege an ethical violation that can be the basis of a disqualification motion. The threat of such disqualification can severely chill such informal discovery as considerable attorney’s fees may be at stake. However, it is far from clear that such conduct by lawyers would really either subject them to tort liability or produce a breach of an enforceable contract. This legal uncertainty creates an “ethical rabbit hole.” Part I of this Article shows that the tort of intentional interference with contract is still evolving and shows considerable variation across jurisdictions along such elements as the knowledge required for intentional conduct and the litigation privilege. Although there are excellent arguments to suggest that lawyers should not be liable for such conduct, the possibility of such liability cannot be conclusively ruled out in many jurisdictions. In Part II of this Article, the analysis turns to the underlying non-disclosure agreement. It is argued that, as employers seek to extend non-disclosure agreements beyond information usually viewed as proprietary under the law to limit informal discovery of employer wrong-doing, serious public policy questions about the legitimate scope and enforceability of such agreements are raised. Finally, the question of whether such conduct should be viewed as unethical is addressed. I criticize the possible use of a rarely asserted and unpredictable tort to define ethical conduct as an improper and imprudent delegation of our professional power. Burdening informal discovery with a threat of disqualification will allow wrongdoing to be buried by employee confidentiality agreements. Legal ethics has a responsibility to enhance the possibility that justice can be achieved and must ensure that the rules of legal ethics do not undermine that effort.
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