Denver Bar Association
January 2006
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Savage Law: She Say May be Hearsay, But Lend Her an Ear Anyway

by Mel Practice

Dear Mel:

My client is the plaintiff in a sexual harassment case. The evidence is clear that the corporate employer knew its top manager was a risk to vulnerable young women. Female workers told us of his habit of persistent groping. Some employees told him where to go, but others were too embarrassed. We knew several women had been harassed under similar circumstances and wanted to testify; some refused to touch the subject, and others were long gone.

A former co-worker has called our client out of the blue and is commiserating about atrocious sexual behavior by the same manager. She is giving details about how she suffered from his advances at work. The co-worker is a minority shareholder of the employer (owns less than 3 percent) who is no longer active and was never in management. She is going through a divorce from a shareholder who owns about 20 percent. Her estranged husband was a close friend of the perpetrator.

The corporation has counsel. The woman who has been calling the plaintiff is not a party and is not represented. Can I speak directly to the former co-worker? Is it OK for the client to encourage more calls?

~Lucky Learner, Esq.

Dear Mr. Learner:

Maybe you’re fresh out of law school, but the first problem is that your client’s version of the other victim’s comments probably will be hearsay. But, I can hear you arguing one of the 10,787 exceptions to the hearsay rule: "It goes to show opportunity, scheme, plan, design, intent, motive and/or notice." Even then, aren’t you going to have some major credibility issues? Rookie, you better take a deposition, although you can probably get by with a witness interview first. As long as her recollection is primarily factual, it might not involve ethical concerns.

The key point here is not to interfere with the opposing party’s right and need for counsel and their attorney-client relationship. Hey, I need an attorney, you need an attorney, the zebra in the zoo needs an attorney, we all need attorneys, you know? Commentaries have urged going through opposing counsel first when a witness has authority to commit the organization to a position over the subject of matter of the representation. See Ethics Committee Formal Opinion No. 69 (5/18/1985). That should not apply to a "bystander" witness who is a former or current employee. (Now there’s an interesting concept — the "bystander employee." Yeah, I’ve worked with a few of those slackers). In other words, is the witness within the scope of the other party’s representation? Owning 3 percent does not appear to make the witness a "party" under RPC 4.2.

The fact issue might be the former employee’s "notice" to management or ownership over the perpetrator’s prior outrageous conduct. Is that an act that could be imputed to the organization for the purpose of civil liability? It probably constitutes a prior fact that might be used in
evidence against the organization, but that should not make learning about it communicating about the subject of representation with a party an attorney knows to be represented by another attorney. Also, the possibility of "management" status does not alone make a witness a "party." Everyone knows you need more than one person to make a party, although managers can sometimes be a wet blanket at office parties.

At this point, I really don’t care if the other woman’s testimony is useful, relevant, admissible or even worth buying her a beer. If you don’t at least talk to this woman, you’re on the verge of committing malpractice anyway. On second thought, it might not be that big of an oversight to not talk to her, but it sure would be lazy, sloppy and dumb. Those are not the Marx Brothers, but they are a sure way to get into trouble.

~Mel A. Cheque

Let Mel Practice answer your questions related to life, law and anything you’d like to know. E-mail your burning question to Nothing is too outrageous!

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