## Facts

- Alice Gaylard received in-home health-care services from Homemakers of Montgomery, Inc., doing business as Oxford Health Care (“Oxford”), including assistance with bathing.
- During a December 16, 1992 bath performed by Oxford employee Dorothy Taylor, Gaylard alleged Taylor used excessively hot water, causing burns, hospitalization, and resulting pain and emotional distress.
- Before suit, Gaylard’s attorney telephoned Taylor at home, recorded the call without disclosing the recording, and continued questioning after Taylor expressed reluctance and stated she should speak with a supervisor.
- Gaylard sued Oxford for negligence, wantonness, and breach of contract; the contract claim was dismissed before trial, and Taylor was not named as a defendant.
- The recorded statement conflicted in certain respects with Taylor’s later trial testimony, including who controlled the water temperature and when Gaylard first complained of being burned.

## Issues

1. Whether the trial court erred by prohibiting use of the recorded, pre-suit statement to impeach Taylor on cross-examination based on an asserted violation of Rule 4.2 of the Alabama Rules of Professional Conduct.
2. Whether any such error was harmless or required reversal and a new trial.

## Decision

- The Supreme Court of Alabama reversed and remanded for a new trial.
- The Court held the trial court erred in finding that plaintiff’s counsel violated Rule 4.2 and in excluding the statement for impeachment on that basis.
- The Court held the error was not harmless because the excluded inconsistencies concerned disputed, material facts central to liability and could have affected the verdict.

## Legal Principles

- Rule 4.2 applies only when a lawyer knows the person contacted is represented by counsel in the matter; absent such knowledge, pre-suit contact is not automatically prohibited.
- The Rules of Professional Conduct are disciplinary standards and are not, by themselves, rules of evidence; an asserted ethical violation does not automatically render otherwise relevant impeachment evidence inadmissible.
- A party is generally entitled to cross-examine a key witness with a prior inconsistent statement when the inconsistency bears on material issues, and improper restriction of that impeachment may constitute reversible error.

## Conclusion

The Alabama Supreme Court ordered a new trial because the trial court improperly treated an alleged professional-conduct violation as a basis to bar impeachment with a prior inconsistent recorded statement, thereby restricting cross-examination on material, contested facts in a manner that was not harmless.


Gaylard v. Homemakers of Montgomery, Inc., 675 So. 2d 363 (Ala. 1996)