148 F.R.D. 68 | S.D.N.Y. | 1993
MEMORANDUM OPINION
These cases, consolidated for discovery purposes, involve allegations of age discrimination by three individuals who were terminated by their former employer, AC & R Advertising, Inc. (“AC & R”).
Defendant has moved to preclude plaintiffs from offering the tapes in evidence, or using them in any way at trial, claiming that they constitute ex parte communications with represented parties, secured at the behest of plaintiffs’ counsel, Richard Meirowitz, in vio
After reviewing the parties’ submissions on the motion and hearing oral argument, it became apparent that there were significant factual disputes, involving witness credibility, which required resolution. A hearing was therefore held, involving several days of testimony, at which, inter alia, plaintiff Miaño and his counsel, Richard Meirowitz, testified. Post-hearing Proposed Findings of Fact were submitted. Having considered all of the submissions and hearing testimony in light of the relevant law, for the reasons that follow I conclude that the evidence derived from the taped conversations need not be excluded at trial.
BACKGROUND
Plaintiff Louis Miaño was terminated from his employment with AC & R, on May 15, 1990, by Stephen Rose, defendant’s former Chief Executive Officer. At the time of his termination, Miaño served as AC & R’s Director of Creative Services. On several occasions between May and August 1990, Miaño had conversations with a former colleague and Vice-Chairman at AC & R, Harry Koe-nig, about his termination. Koenig told him about a meeting in California of the Management Committee of AC & R, at which Rose was heard to make remarks about Miano’s age, and which led Miaño to believe that he was terminated for reasons related to his age. Koenig told him that Rose’s statements could be corroborated by other senior level employees of AC & R who attended the meeting.
Using tape-recording equipment obtained from a company recommended by attorney Richard Meirowitz, Miaño began, on August 28, 1990, to record telephone and in-person conversations with present and former managerial-level employees of the defendant, including Koenig. In total, Miaño recorded forty-three (43) conversations with nineteen (19) different AC & R employees, during the period between August 28,1990 and April 18, 1991.
In August of 1990, Miaño first met with Meirowitz to seek legal advice. There is a dispute as to whether that meeting related to the matters at issue in this case or a wholly unrelated matter. On October 3, 1990, Mi-ano met again with Meirowitz and formally retained him to pursue an age discrimination suit against AC & R. During that meeting, Miaño discussed conversations that he had already taped with Koenig and Patrick King, President of AC & R. During the ensuing months, Miaño continued to tape conversations with management-level personnel of AC & R, some of whom he knew and had been friendly with. Periodically, he discussed information he had obtained with Meirowitz.
On December 17, 1990, Meirowitz filed on Miano’s behalf an age discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights. On February 21, 1991, Miano’s Complaint in this action was filed. On March 4, 1991, an attorney with the firm of Anderson Kill Olick & Oshinsky, Gregory Homer, notified Meirowitz that his firm would be representing AC & R in
Michael Widener, the plaintiff in another of these actions, was terminated by defendant on April 18,1990. He retained Meirow-itz to represent him on December 21, 1990.
DISCUSSION
Attorneys practicing in this Court must adhere to the Codes of Professional Responsibility of both the American Bar Association (“ABA Code”) and New York State Bar Association (“NYSBA Code”), and may be dealt with directly by the Court or referred for discipline for conduct which violates the ethical proscriptions of those Codes. See Southern District of New York General Rules 2(a), 4(f) and 4(k). Although the restrictions of professional codes are not statutorily mandated, “federal courts enforce professional responsibility standards pursuant to their general supervisory authority over members of the bar.” United States v. Hammad, 858 F.2d 834, 837 (2d Cir.1988) (citing In re Snyder, 472 U.S. 634, 645 n. 6, 105 S.Ct. 2874, 2881, n. 6, 86 L.Ed.2d 504 (1985)).
As the Second Circuit held in the Hammad case, in the context of a criminal action, when an attorney secures evidence in violation of the disciplinary rules, suppression of the evidence is an appropriate remedy which a district court may impose in its discretion. Nevertheless, the Circuit observed that the court’s discretion should be exercised cautiously, “with clear cognizance that suppression imposes a barrier between the finder of fact and the discovery of truth”. United States v. Hammad, 858 F.2d at 842.
In another line of eases, the Court of Appeals has made clear that “[t]he business of the court is to dispense with litigation and not to act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the case before it.” W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir.1976); accord United States v. Dennis, 843 F.2d 652, 657 (2d Cir. 1988). While courts may impose appropriate sanctions for attorney misconduct, “the sanctions, absent some serious prejudice to the witness or taint to the trial, should be disciplinary action____” United States v. Dennis, 843 F.2d at 657; accord W.T. Grant, 531 F.2d at 677; see also, Suggs v. Capital Cities/ABC, Inc., No. 86-2774, 1990 WL 182314, at *1 (S.D.N.Y. April 24, 1990); Papanico-laou v. Chase Manhattan Bank, N.A, 720 F.Supp. 1080, 1082-83 (S.D.N.Y.1989); Stagg v. New York City Health and Hospital Corp., 162 A.D.2d 595, 596, 556 N.Y.S.2d 779, 780 (2d Dept.1990) (New York follows common law rule that evidence is admissible even if unethically obtained); “Suppressing Evi-. dence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong?”, Committee on Professional Responsibility of the Association of the Bar of the City of New York, The Record of the Association of the Bar of the City of New York, Vol. 49, No. 4, May 1992, passim (questioning the reasoning of Hammad and endorsing disciplinary action rather than suppression of evidence).
In this action, defendant contends that plaintiffs counsel, Richard Meirowitz, violat
During the course of his representation of a client a lawyer shall not ... Communicate or cause another to communicate with a party [the lawyer] knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The Rule is intended to: (1) prevent situations in which a represented party is taken advantage of through the greater skill of an adversary’s attorney; (2) prevent an attorney from circumventing opposing counsel to obtain unwarranted concessions or liability-creating statements or disclosures from a party; (3) preserve the integrity of the attorney-client relationship; (4) prevent the disclosure of protected information, most particularly attorney-client communications; and (5) allow a party in litigation to have disclosed to it facts acquired by its adversary, through adequate and timely discovery. See United States v. Jamil, 707 F.2d 638, 645 (2d Cir.1983); Lizotte v. New York City Health and Hospital Corp., No. 85-7548, 1990 WL 267421, at *4 (S.D.N.Y. March 13, 1990); Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y.1990); Papanicolaou v. Chase Manhattan Bank, N.A., 720 F.Supp. at 1084; Suggs v. Capital Cities/ABC, 1990 WL 182314, at *4-5; Frey v. Health and Human Services, 106 F.R.D. 32, 34 (E.D.N.Y.1985).
Needless to say, the disciplinary rules of the Codes of Professional Responsibility do not apply to Mr. Miaño or Mr. Widener, neither of whom are attorneys. Therefore, whether plaintiffs’ counsel violated DR 7-104(A)(1) in these proceedings turns upon the resolution of three issues: (1) Were the persons with whom Miaño and Widener spoke “parties”? (2) Were the challenged communications with parties who were known to be represented by a lawyer in this matter? (3) Did Meirowitz “cause” his clients, Miaño or Widener, to communicate with the defendant?
Defendant contends that the evidence supports the conclusion that Meirowitz knew of and benefited from the challenged conversations, and either advised or encouraged them, in violation of the disciplinary rule. Indeed, defendant contends that Meirowitz and Miaño have knowingly concealed evidence and lied to cover up the fact that Meirowitz actually sent Miaño to a company that would equip him to tape the disputed conversations; that Meirowitz was the true client of the taping company and even paid some of its invoices; that Meirowitz guided Miaño in his taping activity; and that the taped ex parte conversations continued until plaintiff could no longer conceal them from defendant.
Plaintiff Miaño contends that: (1) he, on his own, and prior to his retention of Meirow-itz, initiated conversations with former colleagues at AC & R regarding his termination; (2) his initial meetings with Meirow-itz and request for information on taping related to a matter totally unrelated to this action; (3) Meirowitz himself never engaged in conversations with defendant’s employees nor suggested that plaintiff engage in those conversations; and (4) up until at least March of 1991, neither he nor his counsel had any knowledge or belief that defendant was represented by counsel in this matter and, indeed, they contend that defendant was not actually represented by counsel until at least that time. He further contends that all of the taped conversations were fully disclosed to defendant in the course of discovery in this action; in fact, the tapes and transcripts of those conversations have been provided to defendant’s counsel. In sum, plaintiffs’ position is that no disciplinary rule was violated because the conversations in issue were neither engaged in nor caused by an attorney, and were with employees of the defendant at a time when defendant was not yet represented. Further, they argue that this is not a situation where an attorney took advantage of a party by using his superior skill to secure information in a manner calculated to avoid the advice and assistance of counsel.
The second disciplinary rule defendant contends has been violated, DR 1-102(A)(4), prohibits a lawyer from “en-gag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” Al
It is not argued, nor is there any evidence to suggest, that Meirowitz personally engaged in clandestine taping activity. Defendant argues, however, that the tapes which Miaño made should be excluded as evidence because Meirowitz improperly used Miaño to circumvent DR 1-102(A)(4). See DR 1-102(A)(2) (“A lawyer shall not ... circumvent a Disciplinary Rule through actions of another.”) Whether Meirowitz used Miaño to circumvent DR 1-102(A)(4) involves consideration of factors virtually identical to those relevant to determining whether Meirowitz “caused” Miaño to engage in ex parte conversations in violation of DR 7-104(A)(l), i.e., did he use Miaño as his “alter ego”, by advising, suggesting or directing the taping. Had Miaño taped his conversations at the instance of Meirowitz, Meirowitz himself could be considered guilty of unethical conduct. See, e.g., ABA Informal Opinion 1320 (1975). Because the facts relevant to resolution of this issue are the same facts necessary to resolve whether Meirowitz “caused” Miaño to violate DR 7-104(A)(l), both issues will be addressed jointly in Section III, infra.
I. Were The AC & R Employees With Whom Miaño Spoke “Parties” For Purposes of DR 7~10b(A)(l)?
Athough there has been much discussion and controversy in the courts and among bar associations over who may be considered a “party” under DR 7-104(A)(l), whatever disagreement has existed is of little moment given the facts of this case. There are sixteen (16) conversations in issue which occurred between Mr. Miaño and nine (9) employees of the defendant. Eight of those individuals were highly placed, management-level employees.
The only other individual whose taped statements plaintiffs intend to use at trial is William Royce. Royce was the Executive Assistant to Stephen Rose, the former Chief Executive Officer (CEO) of AC & R; he did not hold a management-level position and plaintiffs have acknowledged that his statements cannot be imputed to the corporation or be binding admissions against AC & R. The statements will be used only for impeachment purposes. Therefore, Royce does not fit any definition of a “party” under DR 7-104(A)(l).
II. Was AC & R “Represented” At the Time of Miaño’s Conversations?
An attorney’s conduct may run afoul of DR 7-104(A)(l) only when he communicates or he causes someone else to communicate ex parte with a “party he knows to be represented by a lawyer in [the] matter ...” (emphasis added). Athough I have concluded that most of the AC & R employees Miaño spoke with were “parties” for purposes of the Rule, it is not at all clear that AC & R was known to be or was actually represented in this matter when the taped conversations occurred. Resolution of this issue is complicated by the fact that the majority of the conversations occurred prior to the initiation of this litigation.
It has been recognized that DR 7-104(A)(1) should have force even before actual litigation is commenced. See, e.g., United States v. Hammad, 858 F.2d at 839 (because timing of indictment lies within control of prosecutor, court “resist[s] binding the Code’s applicability to the moment of indictment”); United States v. Guerrerio, 675 F.Supp. 1430, 1438 n. 16 (S.D.N.Y.1987) (dictum in criminal case that, in civil context, DR 7-104(A)(l) applies before the formal initiation of lawsuit); Federal Savings and Loan Insurance Corp. v. Hildenbrand, No. 89-A-535, 1989 WL 107377, at *4 (D.Colo. September 8, 1989) (protection of DR 7-104(A)(l) not dependent upon existence of a civil action); NYSBA Ethics Opinion No. 607 (February 15, 1990); see also, Geoffrey C. Hazard, Jr. and William Hodes, The Law of Lawyering, A Handbook on The Model Rules of Professional Conduct, at 733-34 (2d ed. 1990) (proper reading of rule would count as off limits any party with whom a lawyer already has an adverse relationship, whether or not litigation has been filed). However, prior to litigation and without specific notice, there may often be uncertainty at to whether or not a party is represented. Conversely, once an action is filed, or at least shortly
Here, both Meirowitz and Miaño disclaim any knowledge of AC & R’s representation, at least until March of 1991, when Meirowitz was actually contacted by an attorney retained by AC & R. The facts related to AC & R’s purported representation were testified to by Harry Koenig who, as a Vice-Chairman of AC & R, was legal liaison at AC & R and had authority to hire legal counsel. Essentially, in his affidavit dated May 13, 1992 (Exhibit AA to Defendant’s Reply Memorandum) and his hearing testimony, Koenig-asserted that AC & R, during the period of 1989-91, consulted with various in-house counsel and/or outside counsel regarding employment matters and the termination of employees, particularly where litigation was threatened or anticipated. Koenig set forth a litany of attorneys he claimed did work for AC & R on personnel matters. 8/11/92 Hearing Transcript
Nevertheless, during 1990 and 1991, the years most pertinent to this motion, AC & R did not have a full-time in-house counsel. While two individuals, Ken Simon and Stephen Shepherd, had been full-time counsel in earlier years, by 1990 Simon was consulted on an ad hoc basis, as was Shepherd, who was with a private law firm. Id. at 110, 115. Indeed, by November 1990, Simon’s services had been completely terminated. Id. at 109. In any event, there is no evidence that Mi-ano’s termination or lawsuit was discussed with either of them. Further, although in the course of his employment Miaño had met Ken Simon and was aware he had been involved in some legal matters for AC & R, Miaño knew that Simon had been replaced in 1986, only saw Simon at AC & R once or twice after 1986, did not know his status at AC & R and assumed he had retired. 9/16/92 HT at 47. Miaño did not know, had not heard of, and was unaware of any legal work done for AC & R by any of the outside attorneys, with one exception, whom Koenig claimed had handled various labor matters for AC & R.
Among the attorneys Koenig claims AC & R consulted, and with whom he specifically discussed matters related to the plaintiffs in these cases, were Elke Stone, of the firm of Hall, Dickler, Kent and Friedman, and Maggie Heim, of Mitchell, Silberberg & Knupp. The only relevant issue he spoke to Elke Stone about was a potential settlement agreement with Mr. Weinstein, in October 1990. 8/11/92 HT at 22. At the time, Mr. Stone’s firm was not even on a retainer to AC & R (it previously had been), but was providing services on an hourly basis. Id. at 48. There is no suggestion that Hall, Dickler or Elke Stone were ever consulted about Miaño.
Although Koenig claimed he sought advice from Maggie Heim of Mitchell, Silberberg & Knupp, regarding Miano’s and Widener’s termination, in fact Koenig had one conversation with her in May 1990, following the meeting in California where AC & R’s CEO discussed Miano’s age and termination. The reason for the conversation was that other employees of AC & R who had been at the meeting had approached Koenig about what the CEO had said. Id. at 69, 121-23. The only other conversation Koenig had with Heim was to inform her, some time in January of 1991, of the EEOC charges filed by Miaño. Id. at 126-27. Heim never took any action with regard to that filing or provided any service to AC & R related to Miano’s termination. Heim never had any contact with Miaño and there is no reason to believe Miaño or Meir-owitz had any knowledge of her existence. Heim was only consulted by AC & R on particular employment problems which arose in California. Id. at 48. By no stretch of the imagination could she be said to have been representing AC & R on the Miaño matter.
Koenig, on behalf of AC & R, first contacted AKOO on January 14, 1991, some weeks after Miaño filed his age discrimination charge with the EEOC. Koenig had a telephone conference with an AKOO attorney that day. 8/11/92 HT at 50, 54, 142. As of the end of February, 1991, that one telephone conversation had been the only involvement Koenig had with AKOO regarding Miaño. Id. at 52-54. AKOO never filed any papers with the EEOC in response to Mi-ano’s charges. 8/13/92 HT at'148. AKOO was not consulted about any of the other plaintiffs until several months later, when they filed their EEOC charges.
On March 4, 1991, after AKOO had received the Complaint in this action, one of its attorneys, Gregory Homer, called Meirowitz and informed him that AKOO represented AC & R. That conversation was the first time Meirowitz was actually made aware of AKOO’s or any other attorney’s representation of AC & R. Homer followed the conversation up with a letter to Meirowitz, dated March 5, 1991 essentially repeating what he had said on the telephone. See Exhibit K to Defendant’s Memorandum in Support of the Motion. Homer asked Meirowitz to inform Miaño that if he wished to contact any AC & R employees in an effort to seek AC & R documents and materials, which he had learned Miaño had done, he should do so through counsel.' At some point in March, Meirowitz informed Miaño that he had been contacted by a law firm on behalf of AC & R. Apparently, they did not discuss the impliea-tions of the appearance of counsel on Miano’s taping activity. 9/16/92 HT at 85-87; 8/13/92 HT at 150-152; 155-56.
AKOO filed its Answer to the Complaint in this action on March 18, 1991. Id. at 150. Miaño continued taping conversations with present or former AC & R employees through April 18, 1991. In his April 15, 1991 responses to defendant’s first set of interrogatories, Meirowitz informed AC & R’s counsel of the existence of the taped conversations.
Miaño and Meirowitz disavowed having any knowledge that AC & R was represented in any matters related to Miaño until March 1991, long after most of Miano’s conversations with AC & R employees took place. Meirowitz never heard of any of the attorneys mentioned by Koenig, but he acknowledged that he did not make any effort to discover if AC & R was in fact represented by counsel. 8/13/92 HT at 47, 146-47, 158.
With respect to the conversations Miaño had with.AC & R employees prior to March 5, 1991, I cannot conclude that Meirowitz knew AC & R to be represented by counsel in matters relevant to Miano’s termination or, indeed, that AC & R was actually represented. I do not accept AC & R’s contention that simply because it made use, on an as needéd basis, of the services of various attorneys, that it should therefore be deemed to have been represented in this matter prior to AKOO’s retention. On that theory, any person or entity which faced potential liability because of its conduct, could be considered to be “represented” as long as it had utilized an attorney’s services in the past on other matters. Something more must be required to deem a party “represented” under the disciplinary rule.
There is a dearth of authority on this issue, but particularly apposite is the court’s decision in Federal Savings and Loan Insurance Corp. v. Hildenbrand, No. 89-A-535, 1989 WL 107377 (D.Colo. September 8, 1989). There, an attorney pursuing an investigation on behalf of the plaintiff, concerning the failure of a savings and loan company and possible wrongdoing by its officers and employees,
[An] organization should be considered a party anytime it has specifically retained counsel to represent its interests regarding the subject of representation or has specifically referred the matter to house counsel ... [T]he retaining of an attorney by a party claiming protection of the rule must have a nexus to a potential dispute ... The fact that Hildenbrand had counsel “for general business purposes” was irrelevant, however, absent a specific connection to a potential lawsuit. He was not a party to any litigation at that point, nor had he retained [counsel] for the purposes of defending himself against possible allegations of wrongdoing....
Id,., 1989 WL 107377 at *4. See also, United States v. Jamil, 707 F.2d at 640 (Assistant United States Attorney aware that target had retained counsel to represent him regarding investigation); United States v. Hammad, 678 F.Supp. 397, 399 (E.D.N.Y. 1987), rev’d on other grounds, 858 F.2d 834, 837 (2d Cir.1988) (government was aware defendant had retained counsel prior to indictment); but compare, Florida State Bar Association Committee on Professional Ethics Opinion 78-4, 1978 WL 21716 (FLA.ST. BAR ASSN.) (1978) (where individual or corporation has general counsel representing it in all legal matters, that person must be communicated with; dissenting members conclude that specific matter would have to have been referred to general counsel for corporation to be represented.)
In this case, at the time of Miano’s conversations with AC & R employees, AC & R did not even have a full-time general counsel. Indeed, for much of the time it no longer even had a part-time general counsel, since Ken Simon left in November 1990. Moreover, Miano’s termination was never even discussed with him, no less referred to him for legal assistance. I agree with the court’s conclusion in Hildenbrand, that the mere existence of general counsel, without any particular involvement in the matter in issue, is insufficient to render a corporation “represented”. To conclude otherwise would almost always provide a “no contact zone” around employees of corporations and other entities, that would be unavailable to individual pai’ties or litigants, even where an attorney-client relationship did not yet exist regarding the matter in issue. While organizational defendants are entitled to the same protections under DR 7-104 as are individuals, they are not entitled to greater protection.
The record reveals that any discussions related to Miaño with outside counsel who did work for AC & R on an ad hoc basis, were de minimis; moreover, none of those individuals or firms provided any services to AC & R regarding Miaño. Indeed, any argument by AC & R that it had an attorney-client relationship, relating to the Miaño matter, with any of the various attorneys who did work for it, is belied by the fact that even when it was made the subject of EEOC charges by Miaño, AC & R did not turn to any of those attorneys for assistance. It was the AKOO firm which was consulted regarding Miaño, in January 1991, and they did not make their representation known until March of 1991. Under the circumstances, it is my conclusion that at least through January 14, 1991, when AKOO was consulted by AC & R and when the Complaint had yet to be filed in this action, none of the AC & R employees with whom Miaño spoke were “represented” for purposes of the disciplinary rule. AC & R did not have an attorney-client relationship with any counsel with regard to the Miaño matter, prior to AKOO’s appearance, that was breached or interfered with by Meirowitz through Miano’s conversa
The Court need not address the question of whether any of Miano’s conversations with AC & R employees after AKOO’s retention, on January 14, 1991, transgressed the disciplinary rule since plaintiff does not intend to rely upon or offer any of the tapes of those conversations in evidence.
III. Did Counsel Circumvent the Disciplinary Rules By “Causing” Miaño To Engage in and Tape Conversations With AC & R Employees?
Although most of the evidence and argument in this proceeding was related to the issue of whether Meirowitz “caused” Miaño to engage in his ex parte conversations in violation of DR 7-104, that issue need not be decided. Since I have concluded that AC & R was not represented at the time of the conversations, there can have been no violation of DR 7-104. Nevertheless, the facts relating to Meirowitz’s involvement in Mi-ano’s conversations with AC & R employees remain relevant and must be analyzed in the context of DR 1-102(A), and provide an alternative ground for the conclusion that DR 7-104(A) was not violated.
As discussed above, defendant contends that even if the Court concludes that the tapes made by Miaño should not be excluded as evidence because they did not involve ex parte conversations with a “represented party”, they should be excluded because secret taping of conversations constitutes an independent breach of ethical obligations, regardless of whether the person taped was represented. DR 1-102(A)(4) prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation,” including the taping of conversations, and DR 1-102(A)(2) provides that a lawyer shall not “circumvent a disciplinary rule through the actions of another.” A lawyer’s client is “another” for purposes of the disciplinary rules. Cf. Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, Formal Opinion No. 1991-2 (April 30, 1991) (hereinafter “N.Y.C. Formal Opinion No. 1991-2”), at 3. Thus, if Meirowitz circumvented DR 1-102(A)(4) through Miaño, it is argued that the tapes should be excluded.
There is little authority which specifically addresses when an attorney is considered to have “circumvented” a disciplinary rule through the actions of another. However, DR 7-104 is an example of a rule that appears to explicitly incorporate the concept of “circumvention” by not only prohibiting an attorney from engaging in ex parte communications, but also prohibiting him/her from “causing] another” to engage in such communications. Because there is some authori
I note, however, that neither of these terms is susceptible of precise definition, and by necessity resolution of this issue requires an ad hoc determination based upon the facts of each particular ease. Further, because the disciplinary rules do not have the force of law, but are intended to embody principles for the conduct of attorneys, when they are invoked in litigation a court is
[N]ot constrained to read the rules literally or effectuate the intent of the drafters, but [should] look to the rules as guidelines to be applied with due regard to the broad range of interests at stake. ‘When we agree that the Code applies in an equitable manner to a matter before us, we should not hesitate to enforce it with vigor. When we find an area of uncertainty, however, we must use our judicial process to make our own decision in the interests of justice to all concerned’.
Niesig v. Team I, 76 N.Y.2d at 369, 559 N.Y.S.2d at 495, 558 N.E.2d at 1032 (quoting Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir.1975) (Gurfein, J. concurring)).
Obviously, when an attorney actually requests or engineers a contact or action by another that would otherwise be prohibited by the disciplinary rules, he or she can be deemed to have “caused” it and to have “circumvented” the rule. An attorney cannot legitimately delegate to another what he himself is prohibited from doing, nor may he use another as his alter ego. See Contini v. Hyundai Motor Co., No. 90-3547, 1991 WL 274465, at *3-4 (S.D.N.Y. December 10, 1991); N.Y.C. Formal Opinion No. 1991-2 at 6-8; Cf. United States v. Jamil, 707 F.2d at 646; United States v. Massiah, 307 F.2d 62, 66 (2d Cir.1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (even where criminal defendant was represented, at pre-indictment stage government investigators could properly initiate contacts with him as long as they were not acting as the alter ego of the prosecutor).
There is an argument to be made, however, that the constraints on an attorney must go even further, so as to address the situation where he or she does not explicitly instruct another to act but accomplishes the same result indirectly. Therefore, as the Committee on Professional and Judicial Ethics of the New York City Bar Association concluded in the context of DR 7-104(A)(l), “causing” a client to communicate with another party
... includes not just using the client as an agent or in the place of the lawyer for making the communication (i.e. where the lawyer directs, supervises or plans the substance of the communication), but also the act of suggesting or recommending to the client that he or she engage in such communication, even though the lawyer has no further involvement in or knowledge of the substance of the communication that subsequently takes place, or the endorsement or encouragement of such a course of action, even when it is first raised or proposed by the client____ [T]he lawyer can still in fact “cause” the client to communicate by observing or advising that it might be desirable for the client to ... speak to the adverse party, if the lawyer’s action is a material factor in the client’s final decision to engage in such a communication.
N.Y.C. Formal Opinion No. 1991-2, at 7.
In assessing whether an attorney’s acts or words were a material factor in the client’s decision, the Committee suggested a focus “not on the client’s actual recognized subjective decision-making process, but instead on whether the lawyer’s words and actions would reasonably be understood to suggest or encourage that the client engage in the communication.” Id., n. 4.
The Committee recognized that, as a practical matter, the elimination of any ambiguity as to whether a lawyer encouraged a client’s actions requires placing an affirmative obligation on the attorney to dissuade or prevent the client from acting; however, it declined to do so. It reasoned that parties have a right to deal directly with each other and without the consent of an attorney, and
Similarly, it is not improper for an attorney to advise his client of the legality of taping activity by the client. See New York State Bar Association Committee on Professional Ethics, Opinion No. 515, 1979 WL 15770 (N.Y.St.B.A.Comm.Prof.Eth.1979). The lawyer need not discourage or deter such activity, but he also may not assist, direct or otherwise participate in it so that, in effect, he is using the client as a vehicle to do what he cannot do. Cf. N.Y.C. Formal Opinion No. 1991-2, at 7; see also ABA/BNA Lawyer’s Manual on Professional Conduct, 71:301-71:303 (1988).
Although bar opinions are not binding on this Court, they are instructive in applying ethical rules to attorney conduct in litigation and provide guidance to attorneys themselves in conforming their conduct to ethical proscriptions. If attorneys’ violations of ethical rules are to have implications for litigation, as well 'as their own disciplinary status, the standards against which their conduct is to be measured should be consistent and clear. Nevertheless, even with the principles set forth in N.Y.C. Formal Opinion No. 1991-2, difficult questions remain as to when an attorney’s conduct vis-á-vis his/her client can be deemed “encouragement” or “endorsement” of activity prohibited to the attorney, or circumvention of the disciplinary rules; this is particularly so when an attorney is aware of client initiated contact or taping activity, need not stop it and, indeed, may advise the client as to what he/she can do legally. The instant case represents a prime example of the murky ethical realm in which attorneys and courts can find themselves when pre-litigation adversarial contact is initiated and taped by a client, but with knowledge of the attorney.
In this case, defendant contends that Mr. Meirowitz actually engineered and, in any event, assisted and encouraged his client’s taped conversations with high-level employees of the defendant. Based upon the initial testimony given by Miaño at his deposition, there was good reason to reach this conclusion. However, Miaño subsequently corrected portions of his deposition and he and his counsel submitted further affidavits explaining their conduct. These submissions rebutted certain of defendant’s original assumptions, but ambiguities remained which were difficult to resolve simply on paper submissions. Consequently, an evidentiary hearing was held. Having considered all of the evidence, much of which required an assessment of the witnesses’ credibility, the following are my conclusions of fact.
A. The Period Between May and October 1990
Shortly after Miaño was terminated, on May 15, 1990, he had a conversation with Harry Koenig, Vice-Chairman and Chief Financial Officer of AC & R, and a long time colleague of Miano’s, in which Koenig gave him reason to believe he had been fired for age-related reasons; Koenig thought his termination might merit litigation.
In early August 1990, Miaño contacted Richard Meirowitz, an attorney whom he had met socially several years earlier. They had two telephone conversations in which Miaño sought advice about the legality of tape-recording conversations with other parties. 9/16/92 HT at 14-16, 30. During these conversations, Meirowitz advised Miaño that it was legal in New York to tape a conversation to which Miaño was a party, without divulging to the other party the fact of the taping.
Neither Miaño nor Meirowitz discussed the issues Miaño was investigating with any of the BRI staff, since BRI was not being asked to play an investigative role. However, a substantial dispute exists as to what Meirow-itz and Miaño discussed regarding the subject of the proposed tapings.
At his deposition in this action, Miaño testified that he retained Meirowitz in August 1990, prior to initiating his tape-recording activities on August 28, 1990. Miaño Deposition Transcript, dated May 28, 1991, at 111; November 21, 1991 Dep. Tr. at 516, 517. Subsequently, Miaño made changes or corrections in his deposition testimony, through attached errata sheets. He revised his testimony to state that he did not retain Meirow-itz until October 3,1990, the date he signed a formal retainer agreement. At his deposition, when questioned about the substance of his August conversations with Meirowitz, Mi-ano declined to respond, invoking the attorney-client privilege. However, after the instant motion was filed and the substance of Meirowitz’s and Miano’s conversations was put directly in issue, Miaño and Meirowitz submitted affidavits which essentially stated that Meirowitz was not retained in this matter until October 3, 1990, after Miaño began his taping activities, and that their earlier contacts, in August 1990, involved “counsel-ling” or “representation” on an unrelated matter. See Affidavit of Louis Miaño, dated May 8, 1992, ¶¶ 5-6; Affidavit of Richard Meirowitz, dated May 8, 1992, ¶ 3. The subject of that counselling was described in supplemental affidavits as involving a dispute Miaño was having with the board and managing agent of the cooperative corporation where he lived. See Supplemental Affidavit of Louis Miaño, dated July 6,1992, ¶ 3; Supplemental Affidavit of Richard Meirowitz, dated July 6, 1992, ¶ 4. Miaño and Meirow-itz testified about Miano’s housing dispute in some detail at the hearing on this motion.
Thus, Miano’s initial deposition testimony reasonably gave rise to the following assumptions on defendant’s part: (1) that when Meirowitz and Miaño met in August 1990, Meirowitz was retained as an attorney on this matter; (2) he advised Miaño as to his right to tape conversations related to this matter; and (3) with Meirowitz’s assistance, taping activity began. Those assumptions, however, were subsequently undermined by plaintiffs testimony and sworn statements to the effect that: (1) Miaño spoke to Meirowitz in August of 1990 only about his co-op problems and, in that context, Meirowitz advised him of his right to tape conversations and referred him to BRI (9/16/92 HT at 20-21); (2) from that point onward, Miaño, not Meirowitz, dealt directly with BRI for taping assistance; (3) in late August 1990, Miaño on his own decided it would be in his interest to tape record conversations with AC & R employees in connection with a potential age discrimination claim (9/16/92 HT at 30-31); (4) it was only after having several conversations with AC & R employees, which yielded what was perceived to be strongly supportive evidence, that Miaño decided to bring the age discrimination claim to Meirowitz’s attention (9/16/92 HT at 35-38); (5) that he did so for the first time on October 3,1990, when he
Defendant argues that Miano’s and Meir-owitz’s testimony is not credible and that there is evidence, in addition to Miano’s initial deposition testimony, which strongly suggests that it was contrived. First, defendant points out that Miaño corrected his deposition testimony after he knew that AC & R was challenging the admissibility of the tape recordings. While that may be true, Miaño did not receive the transcripts of his deposition until some time in April or May 1992, and many of his corrections were made shortly thereafter, when the instant motion had already been filed. 8/13/92 HT at 40-41, 57-59.
Defendant also points out that although Miaño claims he spoke to Meirowitz in August about his co-op difficulties and the possibility of taping conversations, he in fact made no such tapes and only taped conversations related to this action. Miano’s explanation is that he attempted to tape record conversations with an employee of his building management company but failed because of problems with the equipment.
Defendant further argues that Miano’s and Meirowitz’s credibility was seriously undermined by significant inconsistencies, omissions and concealments regarding BRI’s billing for its services and Meirowitz’s involvement with that billing. The evidence relating to BRI’s billing was also offered to prove Meirowitz’s continued involvement in Miano’s clandestine taping activity and ex parte conversations.
In its initial submissions with this motion, defendant suggested that Meirowitz may have actually paid some of BRI’s tape transcription bills. This apparently arose as an issue because, at his deposition, Miaño testified that Meirowitz paid some of the first BRI bills, and later corrected his deposition to state that Meirowitz did not pay any of the bills. Miaño Deposition Transcript, dated April 2, 1992, at 1199, 1208, 1213, and errata sheet. In fact, there is no evidence that anyone but Miaño paid the BRI bills.
Miano’s initial confusion may be attributed to some error or misunderstanding on BRI’s part. Defendant made much of the fact that on its initial invoices, BRI listed Meirowitz as the “client”. This, however, does not demonstrate the Meirowitz was the actual client, that he paid the bills, or that he knew, prior to October 3, 1990, that Miaño had taped conversations with AC & R employees. BRI’s then regional manager, John Good, testified that it was normal procedure to list the referring attorney as the “client”, rather than the - attorney’s client. 8/11/92 HT at 160-61. This was done on Good’s instruction. When Meirowitz first called Good, they had only a brief conversation in which Meir-owitz indicated that he had an individual who needed taping assistance. The subject of
Because Meirowitz was listed as the “client”, initially BRI bills went directly to him. Defendant places much emphasis on the fact that BRI’s first two invoices, dated September 4 and October 8, 1990, were addressed to Meirowitz. See Hearing Exhibits lili and JJJJ. It argues that if Meirowitz received an invoice for taping activity shortly after September 4, 1990, it would contradict his testimony and his July 6, 1992 Affidavit, ¶ 5, where he swore that he first learned of Miano’s taping of AC & R employees on October 3, 1990, when Miaño met with him and formally retained him on this matter. However, in his July 6th Affidavit, and at trial, Meirowitz also testified that he did not receive BRI’s September 4 and October 8, 1990 invoices until October 23, 1990. 8/13/92 HT at 52, 54-55. When he received them, he instructed the BRI billing employee, Ann Creighton, to address future bills to Miaño and to provide a breakdown and itemization of the invoices. 8/13/92 HT at 87; Hearing Ex. HHHHH. The revised September and October invoices were received on November 6, 1990. 8/13/92 HT at 113-15. However, despite Meirowitz’s purported instruction to Creighton to send future bills to Miaño, the November and December bills also went to Meirowitz. It was only in January 1991, that BRI changed its records to list Miaño as the client, so that the bills went directly to him.
While it is not unreasonable on defendant’s part to assume that BRI’s September 4th invoice was received by Meirowitz some time in September, there is no actual proof to contradict Meirowitz’s testimony that he received the September and October bills on October 23. Moreover, given Meirowitz’s documented concerns that the September and October bills were not sufficiently itemized, it is fair to assume that had he received the September 4th invoice in September, he would have then made the request to BRI to provide a more detailed breakdown of costs. Yet, he did not make such a request until October 23, see Hearing Ex. HHHHH, which is the date he contends he actually received the invoices.
Finally, defendant submitted the declaration of Jerome Bess, the former chairman of AC & R, in which he asserted that in a conversation with Miaño, Miaño stated that he was advised to tape his conversations by counsel. Bess testified at the hearing. Mi-ano and Bess had two telephone conversations which Miaño taped—one on December 17, 1990 and the second on March 29, 1991. Bess acknowledged that Miaño had stated that Hairy Koenig, AC & R’s Vice-Chairman, suggested that Miaño call him. During the conversations, Miaño made Bess aware of his proceedings against AC & R, and Bess told Miaño that he thought he had a strong case. 9/16/92 HT at 162, 165. Bess did not know he was being taped. When he later learned of the tapings from AC & R’s counsel, he telephoned Miaño, in April 1991, to question him about the taping. Bess testified that Miaño stated that he had been advised to tape; although, in his declaration Bess stated that “to the best of his recollection Miaño said that he was advised by his counsel to tape record his conversations ... ”,
Miaño testified that he never stated to Bess that he had been advised by his counsel to tape record the conversations. He said that he had been advised that it was legal to tape. 9/16/92 HT at 35, 111.
In sum, while there is circumstantial evidence which raises questions about a number of details in Miano’s and Meirowitz’s testimony, I cannot conclude that their testimony was not credible in its entirety or that the evidence affirmatively proves that Meirowitz suggested, advised, or supervised the ex parte taping and conversations that occurred between August 28 and October 3, 1990, when he was formally retained. There is thus no basis for excluding as evidence the taped conversations with AC & R employees which occurred up to that date.
B. Post-October 1990 Tapings
Having concluded that there is no basis on which to conclude that Meirowitz initiated Miano’s taping of conversations with AC & R employees, I turn now to the question of whether at some later point in his representation of Miaño, Meirowitz circumvented DR 1-102(A)(4) by “causing” or “encouraging” Miaño to continue his taping activities. On October 3, 1990, Miaño met with Meirowitz and informed him of his termination from AC & R and of the facts which he had secured that gave him reason to believe he might have the basis for a lawsuit. He acknowledges having told Meirowitz of recording three conversations, two with Harry Koenig on August 29,1990 and September 25, 1990, and the other with Patrick King, President of AC & R, on October 1, 1990. 9/16/92 HT at 36-37, 90. These conversations confirmed Miano’s suspicions that age had been a factor in his termination. He had been given some details of the meeting in California where Stephen Rose, CEO of AC & R, purportedly made age-related remarks about Miaño and others. According to Miano, Koenig suggested that he contact members of the AC & R Management and Executive Committees who had been at the meetings, or who were in New York; Koenig suggested that he gather other evidence, and Koenig suggested that he consult an attorney. Id. at 58, 61, 84, 94-99.
After spending the morning of October 3, 1990 providing these details to Meirowitz, that afternoon Miaño signed a retainer agreement. According to Miaño, while Meir-owitz may have indicated that he was “intrigued” by the evidence Miaño had gathered, he never directed Miaño to engage in other conversations or tapings. 9/16/92 HT at 41-43. While Miaño may have told Meir-owitz he was going to speak to other AC & R employees, specifics were never discussed, Meirowitz never suggested it, and Miaño never told Meirowitz of plans to tape further conversations. 8/13/92 HT at 49, 111; 9/16/92 HT at 132-34. During the week after their October 3rd meeting, Meirowitz and Miaño continued to speak on the telephone, with Miaño providing more details he had received from Koenig.
Miaño continued to tape conversations with AC & R employees in the months that followed. For the most part, the people he chose to speak with were those who Koenig, of AC & R, suggested would have useful information. 9/16/92 HT at 107-09. Meirow-itz was aware that Miaño had further conversations with AC & R employees, although he and Miaño testified that they never discussed Miano’s prospective plans to speak to other AC & R employees. 8/13/92 HT at 129-30. Meirowitz acknowledged at the hearing that he probably indicated in his conversations with Miaño that certain information was useful. 8/13/92 HT at 77-85. Meirowitz did not directly discuss taping activity with Miaño; he did not advise him to tape or not to tape, and was generally unaware of whether specific information Miaño was providing had actually been taped.
The only other evidence which relates to Miano’s motivation in speaking to and taping conversations with AC & R employees involves Harry Koenig, AC & R’s Vice-Chairman. Miaño testified at length about his meetings and conversations with Koenig, the first one dating back to May 1990, shortly after Miaño was terminated and well before he ever spoke to Meirowitz. Koenig told Miaño about the AC & R Management Committee meeting in California and gave him reason to believe that AC & R’s CEO made age-related remarks about Miaño and others at the meeting, and that Miano’s termination was age-related. Koenig suggested that Mi-ano speak to a list of AC & R employees in California and New York, who could provide more information. Koenig encouraged Mi-ano to bring suit and suggested he could help. Indeed, Koenig suggested that Miaño consult an attorney, and went so far as to suggest his seeing Koenig’s daughter, who was a labor lawyer.
Koenig testified at the hearing as well. He confirmed that he informed Miaño in May 1990, shortly after he was fired, of what occurred at the AC & R meeting in Irvine, California and that he suggested that if he wanted more information he should discuss the meeting with other AC & R employees who were present; he named at least some of them specifically. 8/11/92 HT at 158-163. Koenig .also testified that he suggested to Miaño various documents he thought it would be helpful to subpoena from AC & R, Id. at 164-65, and it was Koenig who suggested that Miaño speak to Alvin Chereskin, the Chairman of AC & R, on January 3, 1991.
As with Miano’s activity before he retained Meirowitz as counsel, on October 3, 1990, there is little or no evidence to support the conclusion that Miano’s later taped conversations with AC & R employees were directed, planned or suggested by Meirowitz. Meir-owitz did not engineer or arrange .them. Compare United States v. Hammad, 678 F.Supp. at 399; 858 F.2d at 837 (prosecutor directed informant to arrange and record a meeting with a represented party and provided the informant with a sham subpoena to mislead the represented party). There is also no evidence that Meirowitz ever advised Miaño either as to the substance of his conversations with the AC & R employees or as to whom he should speak. In fact, virtually all of the people with whom Miaño spoke had been suggested by Harry Koenig. Cf. United States v. Buda, 718 F.Supp. 1094 (W.D.N.Y.1989) (where Assistant United States Attorney knew defendant was represented and did nothing more than acquiesce in wiring and recording of informant’s conversation with defendant, but in no way attempted to direct the content of the conversation so as to beguile defendant in to giving his case away, no violation of DR 7-104(A)(l) and evidence not suppressed.)
Nevertheless, this is also not a case where Meirowitz can credibly claim that he was not even aware of Miano’s conversations with AC & R employees or his taping activity, or that he specifically directed him not to engage in such activity. Compare Contini v. Hyundai Motor Co., 1991 WL 274465 at *3; United States v. Jamil, 707 F.2d at 645-46. Rather, over the course of several months, Miaño reported to Meirowitz on the fruits of his conversations with AC & R employees and, even if Meirowitz did not specifically discuss
Meirowitz’s ongoing discussions and receipt of information from Miaño, derived from taped conversations, presents a troubling and close ethical question—whether Meirowitz was so embroiled in Miano’s conduct so as to be considered to have circumvented the disciplinary rules through Miaño. There obviously would be less ambiguity with respect to an attorney’s ethical obligations in a situation such as existed in this case, if it was clear that attorneys are either required to control their clients’ behavior or so completely disassociate themselves from the clients’ behavior so as to preclude any discussion with clients of what action they contemplate or are engaged in. Nevertheless, that is not clearly expected. Ethics opinions allow that attorneys need not prevent clients from engaging in ex parte or taped conversations with adversaries, and are permitted to counsel clients regarding the scope and ramifications of such conduct. See ABA Formal Opinion 84-350 (1984); N.Y.C. Formal Opinion No. 1991-2; NYSBA Opinion No. 515 (1979) (counsel is not limited to restating the law, but may “explain to the client whether in the particular context such monitoring is appropriate, having regard to its purpose, the parties involved, the time and place, the extent and nature of the conversation likely to be recorded, possible harmful social consequences and other pertinent considerations”).
Here, Meirowitz did not suggest, plan or supervise what Miaño was doing, and what Miaño was doing was not illegal. While it might have been desirable for Meirowitz to explore with Miaño the moral implications of his actions, his failure to do so did not render his conduct clearly unethical. Although I believe Meirowitz came perilously close to crossing the line of circumventing the disciplinary rules through the actions of Miaño, and Meirowitz would have been better advised to have further distanced himself from Miano’s undertakings, I am not prepared to conclude that Meirowitz’s knowledge of Miano’s activity or receipt of information from Miaño placed Meirowitz in violation of the disciplinary rules. When a client independently and legally secures information which is relevant and useful to his ease and provides it to counsel, the attorney’s use of that information is not unethical. The evidence does not support the conclusion that Meirowitz “caused” Miano’s behavior or “used” Miano to circumvent the disciplinary rules.
I would further note that even if Miano’s taping activity could be attributed to Meirowitz, it is not at all clear that suppres
The interests served by the rule against clandestine taping are different. Its primary concern is with an attorney’s status as a member of the bar and expectations of conduct in dealing with others that flow from that status, ie., candor and honesty. While no less important, these interests are more appropriately monitored and enforced through disciplinary bodies rather than trial courts. Cf. W.T. Grant v. Haines, 531 F.2d at 677; Papanicolaou v. Chase Manhattan Bank, 720 F.Supp. at 1083 (“Different ethical rules warrant different cures when breached.”). There is little reason to believe that Miano’s taping of the AC & R employees’ conversations affected, in any way, the substance of what they said.
CONCLUSION
For the foregoing reasons, I conclude that the tapes of conversations with defendant’s employees, secured by plaintiffs Miaño and Widener, were not the fruits of ethical violations by plaintiffs’ counsel, and should not be precluded as evidence. Defendant’s motion is therefore denied.
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. A fourth case, Forgione v. AC & R Advertising, Inc., 91 Civ. 1917, had also been consolidated with these cases and involved in the litigation of the instant motion. That case has since been settled.
. Plaintiffs cross-moved, pursuant to Rules 36 and 37(a)(4), Fed.R.Civ.P., for an order deeming admitted matters set forth in their Third Request For Admissions, relating to the accuracy of the transcriptions of the tape recorded conversations. At the oral argument of these motions, defendant’s counsel agreed to stipulate to the authenticity of the tape transcriptions, thus resolving plaintiffs’ cross-motion.
. For purposes of these actions, plaintiffs seek to utilize and rely upon sixteen (16) conversations taped by Miaño between August 28, 1990 and January 11, 1991. A seventeenth taped conversation which is relied upon, was made by plaintiff Widener on April 17, 1991. The tapes are specified in Appendix A to this Opinion.
. Meirowitz filed charges with the EEOC on Widener’s behalf on January 7, 1991, and filed a Complaint with this court on March 11, 1991. Defendant answered the Complaint on April 2, 1991. The Complaint and Answer in the Wein-stein action were filed on June 11, 1991 and July 12, 1991, respectively.
. In United States v. Hammad, the Court reversed the district court's order suppressing evidence because, at the time of the conduct in issue, the law was unsettled as to whether DR 7-104(A)(l) was applicable to the pre-indictment stage of a criminal proceeding.
. Those individuals are: Hariy J. Koenig, Vice-Chairman & Chief Financial Officer of AC & R; Karen Amorelli, President of AC & R New York; Alvin Chereskin, Chairman and Chief Executive Officer of AC & R; Susan Yusi, Vice-President and Comptroller of AC & R; Clark Wilson, Senior Vice-President and Management Supervisor of AC & R, Irvine; Jack Gerken, Senior Vice-President of Public Relations of AC & R, Irvine; Carolyn Johnson, Senior Vice-President and Creative Director of AC & R, Irvine; Lynn Livingston, President and Chief Operating Officer of AC & R, Irvine.
. Plaintiffs initially argued that the statements were to be used for impeachment purposes only. Subsequently, in a letter to the Court from plaintiffs' counsel, dated July 27, 1992, plaintiffs took the position that they were also to be offered as party admissions, pursuant to Rule 801(d), Fed. R.Evid. The Court need not resolve the issue of whether these statements actually are admissible at trial as admissions of a party-opponent. Since plaintiffs seek the benefit of attributing the AC & R employees’ statements to the corporate defendant, their counsel's conduct must be judged as involving a "party” under DR 7—104(A)(1). Cf. Frey v. Department of Health and Human Services, 106 F.R.D. at 38 (Plaintiff's counsel ... cannot have it both ways since the employees will not be deemed by this court to be non-parties for purposes of DR 7-104 but "parties” for purposes of Fed.R.Evid. 801(d)(2)(D)); accord, McKitty v. Board of Education, No. 86-3176, 1987 WL 28791, *3 (S.D.N.Y. December 16, 1987).
. Although, earlier in this dispute, the parties disagreed as to whether former employees of AC & R should be considered "parties” for purposes of the disciplinary rule, the conversations now in issue, with the one exception of that between Mr. Widener and Mr. Woodworth, on April 17, 1991, were all with employees who, at the time, still worked for AC & R. As for the Widener/Wood-worth conversation, there is no evidence that it was either engaged in or “caused” by counsel. In any event, plaintiffs do not intend to offer Woodworth's statements as binding admissions of AC Sz R and it is now widely accepted that except where there is the possibility of disclosure of attorney-client privileged communications, former employees are not considered “parties” ■under DR 7—104(A)(2). See Polycast, 129 F.R.D. at 625-628; Lizotte, 1990 WL 267421 at *5, n. 7; Hanntz v. Shiley, Inc., 766 F.Supp. 258, 263 (D.N.J.1991); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D.Conn.1991); ABA Formal Opinion 91-359 (March 22, 1991).
. The hearing on this motion took place on August 11, 1992 (hereinafter "8/11/92 HT”), August 13, 1992 (hereinafter "8/13/92 HT”), and September 16, 1992 (hereinafter "9/16/92 HT”).
. Miaño had not heard of the Hall, Dickler firm, but he had heard of. Elke Stone at some time in the past. 9/16/92 HT at 46, 195. While there is some evidence that Stone, Stephen Shepherd and Martin Tucker were identified as legal liaison to certain staff at AC & R in a memorandum dated January 4, 1990, Plaintiff's Hearing Exhibit 4, Miaño did not recall ever receiving or seeing that memo. 9/16/92 HT at 112.
. Transcripts of the tapes were subsequently provided to the defendant.
. I recognize that the rules should not permit an attorney to remain "willfully ignorant” of another party's representation. However, given the fact that AC & R was not actually represented in this matter before January of 1991, and Meir-owitz himself was not interviewing AC & R employees or misleading them as to his identity, there is no need to address the questions of whether Meirowitz had an obligation to do more to inform himself of whether AC & R was represented or to advise AC & R's employees of who he was and why they were being spoken to. Miaño spoke with AC & R's employees; they knew who he was and that he had been terminated by AC & R. Cf. W.T. Grant, 531 F.2d at 674 (citing Informal Opinion No. 908 of the Standing Committee on Professional Ethics of the ABA (Feb. 24, 1966)) ("[i]t is not unethical behavior for a potential plaintiff’s attorney to interview a potential defendant so long as the latter knows that the statement is being taken by the lawyer in his status as attorney for the plaintiff”); Federal Saving and Loan Insurance Corp. v. Hildenbrand, 1989 WL 107377 at *4 (attorney has no duty to inquire whether a person has legal counsel in matter in question and need not warn each person interviewed that they may be sued; in this case attorney identified himself, his client and the general purpose of the interview); New York State Bar Association Committee on Professional Ethics, Opinion No. 607, 1990 WL 304225 (N.Y.St.B.A.Comm.Prof.Eth., February 15, 1990) (to prevent willful ignorance of opposing party’s representation, lawyer who communicates with party should tell him that communication should be referred to counsel if represented.)
. The only conversation subsequent to January 14, 1991 upon which plaintiffs do seek to rely is that between Michael Widener and Robert Woodworth, on April 17, 1991. However, as set forth supra, at the time of the conversation Woodworth was no longer an employee of AC & R and would not be considered a “party” for purposes of the rule. Moreover, there was no evidence that Meirowitz was involved in, suggested or directed that encounter. 8/13/92 HT at 163-64.
. Miaño testified that when he said at his deposition that he' retained Meirowitz in August 1990, he was thinking of his consulting him on his housing problems, and he was mistaken as to the date of Mcirowitz's retention on this matter. 9/16/92 HT at 29-31. At the hearing in this matter, Miaño testified that after reviewing the retainer agreement and his check stubs, he realized that the date he retained Meirowitz was October 3, 1990. See Plaintiffs’ Hearing Exhibit 5; 9/16/92 HT at 114.
. A BRI employee, William Frawley, 'testified that he actually did replace Miano’s taping equipment several times, lending some support to Miano's explanation. 8/11/92 HT at 105-06.
. Supportive of Meirowitz’s testimony that he instructed BRI to bill Miaño directly in late October, is his November 12, 1990 letter to Miaño, sent after Meirowitz received more bills, asking Miaño to advise BRI to bill him directly. Defendant's Hearing Ex. SSSS.
. Even if Meirowitz had received the BRI September 4th invoice in September, that would not prove that he was aware of ex parte taping activity related to this action prior to October 3, 1990, when he contends Miaño told him of the taping. The September 4th invoice does not indicate the subject of the taping activity. Moreover, it relates to services incurred through August 24, 1990. See Hearing Ex. B. In fact, Miaño did not make the first tape related to this action until August 28, 1990. The invoice could have just as reasonably been understood to relate to BRI’s work for Miaño on his housing problems.
. Meirowitz first received draft transcripts of the tapes several months into 1991. He did not receive or listen to any of the tapes until May of 1991, after the taping activity had ceased. 8/13/92 HT at 140-146.
. In addition to being a Vice-Chairman of AC & R, Koenig told Miaño that he had a legal background and, in fact, that he attended and graduated from law school. 9/16/92 HT at 91-92. Indeed, Miaño believed Koenig to be a lawyer. Koenig's testimony on this subject was equivocal and, in any event, he did not clearly deny that he made such representations. 8/11/92 HT at 97-98.
. Koenig actually transferred Miaño to Cheres-kin's telephone line. The Chereskin conversation was taped and is in issue. 9/16/92 HT at 100-102. Indeed, the January 3, 1991 conversation with Koenig, which was taped, was actually initiated by Koenig and not Miaño. Id. Two other taped conversations, with Mr. King, in April 1991 and Ms. Amorelli, in November 1990, were not initiated by Miaño. Id.
. As the New York City Bar Ethics Committee observed, while it would be more difficult for a lawyer to circumvent the disciplinary rules if he could not discuss the subject of his client’s communications with the client at all, that could have the effect of unnecessarily curtailing the assistance of counsel available to a client. N.Y.C. Formal Opinion No. 1991-2, n. 4.
. While it might be argued that Meirowitz's receipt of, and interest in, the information which Miaño secured "encouraged” Miaño in some way to continue his activities, on the facts of this case I must conclude that any such encouragement was both indirect and marginal. Miaño initiated his contacts with AC & R employees before he ever spoke to Meirowitz. He was truly encouraged to do so by Harry Koenig, AC & R’s Vice-Chairman. Miaño is a sophisticated businessman and the relevance and usefulness of the information Koenig provided to him was apparent. That he followed through on Koenig’s leads, subsequently provided that information to Meirowitz and received confirmation that it was useful, should not place Meirowitz in violation of the disciplinary rules for having "encouraged" Miano’s conduct.
. The facts of this case do not suggest that any of the AC & R employees with whom Miaño spoke were taken advantage of by Meirowitz's skills as an attorney. He did not speak with them or guide Miaño in his questioning. Additionally, there is no evidence that the information Miaño secured breached attorney-client communications at AC & R.
. It appears that there is deposition testimony by most of the AC & R employees whose conversations were taped, which substantially parallels what they said directly to Miaño.