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Abstract

Whether or not a lawyer can be found to have acted unethically in violation of Model Rule 4.4 initially depends upon whether the lawyer would be liable for intentional interference with the NDA between the former employee and their employer. In part, this is a matter of tort law, and in Part I of this Article, published separately at 89 NEB. L. REV. (forthcoming June 2011), I evaluated the possible application of this quite complex tort to a lawyer’s informal communication with such a former employee for the purpose of obtaining information relevant to proposed or pending litigation. What emerged from this evaluation was a sense that only in a few jurisdictions and with the best facts could we have confidence that a lawyer would not be liable for intentional interference with contract as a matter of tort law.6 However, since a breach of an enforceable contract is required before any tort liability can attach, this ethical rabbit hole also includes a detour through contract law as well. In this second part of the Article, I consider the likelihood that an employee NDA would be interpreted to cover various kinds of information that might be relevant to litigation. While the scope of coverage depends initially upon the language of the agreement, there are good arguments to suggest that various public policy considerations could limit the enforceability of NDAs in this context. However, courts have thus far had limited opportunities to evaluate the public policy implications of NDAs used to block informal discovery, and what results there are have been quite mixed.7 As a result, it is almost impossible to predict in advance whether a particular NDA will be found to be unenforceable. With the possibility that some NDA contracts might be found both enforceable and breached in this scenario, the question of whether a lawyer’s connection to such a breach is unethical moves from the arena of substantive law to ethics itself. If tort and contract law actually does extend this far, at least in some jurisdictions, should we embrace the limits thereby imposed on lawyers and make them our own? If we do rubberstamp such tort law in the ethical rules, it provides opposing counsel with a very simple and potent threat. Without opposing counsel ever actually litigating either the tortiousness of the conduct or the enforceability of the contract, and without ever making an ethical complaint, the opposing party can move to disqualify the lawyer on the mere possibility that a lawyer may have violated Model Rule 4.4(a).8 This threat so immediately threatens the pocketbook of lawyers and clients9 that it may in fact create more deterrence than either the threat of tort liability or the threat of discipline. The threat of tort liability is remote in time, expensive for the other side to pursue, and might be covered by malpractice insurance. The threat of discipline is even more remote as opposing counsel can not get a strategic benefit from any possible discipline and likely suffers from the bar-wide reluctance to report possible ethical violations. Thus, without a deliberate decision as to whether we do indeed want to deter such conduct by litigation counsel, the Model Rules could be understood to have handed opposing counsel a weapon capable of producing a serious chill in litigation investigations,10 or, at the very least, greatly increasing the cost of litigation by shifting informal investigation to formal discovery. In the final section of this Article, I consider the history, purpose, and interpretation of Model Rule 4.4, and conclude that there are good reasons for excluding conduct of this kind from the reach of the rule.

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