## Facts

- Thomas Niesig, an employee of DeTrae Enterprises, Inc., was injured after falling from scaffolding at a construction site.
- Team I owned the property, and J.M. Frederick Construction served as general contractor.
- Niesig sued the owner and contractor under New York Labor Law § 240; those defendants impleaded DeTrae as a third-party defendant.
- Before trial, Niesig sought permission for his counsel to conduct ex parte interviews of DeTrae employees who were present at the site at the time of the accident, describing them as nonmanagerial fact witnesses.
- DeTrae objected, arguing that Disciplinary Rule (DR) 7-104(A)(1) barred opposing counsel from contacting any DeTrae employees without its counsel’s consent.

## Issues

1. Whether DR 7-104(A)(1)’s prohibition on ex parte communications with a represented “party” treats all employees of a represented corporate litigant as “parties.”
2. If not, which corporate employees fall within the rule’s prohibition.

## Decision

- The Court of Appeals of New York modified the Appellate Division’s order.
- The court rejected a rule that would bar ex parte contact with all current corporate employees.
- The court also rejected a narrow “control group” approach limited to top management.
- The court held that DR 7-104(A)(1) bars ex parte communication only with (1) employees whose acts or omissions in the matter are binding on the corporation (imputable for liability purposes) or (2) employees implementing the advice of counsel.
- Under that standard, plaintiff’s counsel could interview nonmanagerial DeTrae employees who were merely witnesses and whose conduct was not at issue for imputation to DeTrae.

## Legal Principles

- For organizational clients, “party” under DR 7-104(A)(1) includes corporate employees whose conduct in the matter can be imputed to the corporation for liability, and employees implementing counsel’s legal advice.
- The rule does not bar ex parte interviews of corporate employees who are “mere witnesses” and lack authority or involvement that would bind the corporation in the litigation.
- The no-contact rule protects represented entities from overreaching and preserves counsel’s role, but it does not function as a general shield against informal fact-gathering.

## Conclusion

The court adopted a functional definition of which corporate employees are treated as represented “parties” for no-contact purposes, permitting ex parte interviews of ordinary employee witnesses while barring contact with employees whose conduct is imputable to the corporation or who implement counsel’s advice.


Niesig v. Team I, 76 N.Y.2d 363 (N.Y. 1990)