New York District Court Holds that Government May Contact Employees Without Counsel Present

The United States District Court for the Eastern District of New York held that the Government did not violate the “no-contact” rule in connection with an investigation of Amgen, Inc., a biotechnology company.  Since 2006, the United States District Attorney for the Eastern District of New York has been investigating allegations that the company violated the False Claims Act and other federal statutes.  Amgen alleged that the Government violated New York professional responsibility rules when it contacted Amgen employees directly instead of through counsel.

New York Rule of Professional Conduct 4.2(a) generally prohibits an attorney from communicating with a party to a particular matter when the attorney knows the party to be represented by another attorney in the same matter. The court held that, because the Government had not intervened in the qui tam lawsuits against Amgen, it was not a “party” to the matter, and thus Rule 4.2(a) did not apply.  The court further held that Amgen was not a “party” to the grand jury investigation; therefore, Rule 4.2(a) did not prohibit Government attorneys or investigators from communicating directly with Amgen employees in connection with the investigation.

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