vires. See Vicksburg Furn, Mfg. Ltd. v. Aetna, 625 F.2d
1167, 1170 (5th Cir. 1980). In appropriate
circumstances, a claim can also be made that the
corporation was authorized by law to perform the act. See
State v. Riggs, 91 N.J.L. 456 (Sup. Ct. 1918), error
dismissed, 92 N.J.L. 575, (E. & A. 1919).
IV. PROCEDURES
A. Investigations
The Fifth Amendment privilege against self-
incrimination does not apply to corporations,
partnerships, or sole proprietorships with regard to the
production of records. Matter of Grand Jury Proceedings of
Guarino, 104 N.J. 218 (1986); In re Siegel, 208 N.J.
Super. 588 (App. Div.), certif. denied,, 105 N.J. 568
(1986); In re Doe, 294 N.J. Super. 108, 128 (Law Div.
1996), aff’d, In the Matter of John Doe and Roe
Corporation, 302 N.J. Super. 255 (App. Div. 1997). See
also United States v. Doe, 465 U.S. 605 (1984); Fisher v.
United States, 425 U.S. 391 (1976); United States v.
White, 322 U.S. 694, 698 (1944).
In In the Matter of John Doe and Roe Corporation, 302
N.J. Super. 255 (App. Div. 1997), the court upheld the
constitutionality of N.J.S.A. 2C:41-5f, which allows the
Attorney General to use investigative interrogatories to
enforce the racketeering laws. The court further noted
that, if leaked information was found to have come from
a state employee, N.J.S.A. 2C:41-5f itself provided the
exclusive remedy. Suppression of the interrogatories was
not the appropriate remedy.
The issue presented in In the Matter of Opinion 668
of the Advisory Committee on Professional Ethics, 134 N.J.
294 (1993) and State v. CIBA-GEIGY Corp., 247 N.J.
Super. 314 (App. Div.), appeal dismissed, 130 N.J. 585
(1992), was the applicability of RPC 4.2 to the ex parte
interviewing of current and former employees of a
corporate litigant. At that time, RPC 4.2 provided,
In representing a client, a lawyer shall not
communicate about the subject of the representation
with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do
so.
As a result of Opinion 668, the question was referred
to a special joint committee of the Civil and Criminal
Practice Committees for study and recommendations. In
1996, RPC 4.2 was amended to clarify that a lawyer
could not speak about a matter with a represented
corporate party, including members of an organization’s
litigation control group as defined by RPC 1.13. RPC
1.13 defines an organization’s litigation control group as
“current agents and employees responsible for, or
significantly involved in, the determination of the
organization’s legal position in the matter in question,
whether or not in litigation, provided, however, that
‘significant involvement’ requires involvement greater,
and other than, the supplying of factual information or
data respecting the matter.” In State v. Bisaccia, 319 N.J.
Super. 1 (App. Div. 1999), the court held that RPC 4.2
“applies in the criminal context only after adversarial
proceedings have begun by arrest, complaint or
indictment on the charges which are the subject of the
communication.” Id. at 22.B. Instituting Suit Against A Corporation
1. Summons or Warrant
An individual shall be served by summons unless a
warrant is justified by one of the factors set forth in R. 3:3-
1(b). A corporate defendant, on the other hand, can only
be served by summons. R. 3:3-1(a).2. Service
R. 3:7-10 (Superior Court) and R. 7:2-3(b)
(municipal court), both provide that a corporation shall
be served in accordance with R. 4:4-4. R. 4:4-4(a)(6)
states that the summons may be served on an officer,
director, trustee, or managing or general agent of a
corporation; any person authorized by appointment or
law to receive service of process on behalf of the
corporation; or a person in charge at the corporation’s
registered office; or if none of the above is possible, a
person in charge at the principal place of business in New
Jersey; or if there is none, any servant of the corporation
within the state acting in discharge of his duties. If after
diligent effort, a foreign corporation cannot be served as
set forth above, then service may be made by mail.
However, such service is effective only if the defendant
makes an appearance in response thereto. R. 4:4-4(c)(1).If a summons is returned “not served” and the court
is satisfied the summons could not be served, then the
court will order the defendant to appear and plead. The
order is to published in a newspaper. If the corporate
defendant then does not appear on the date specified in
the order, an appearance and a “not guilty” plea will be
entered and the case may proceed. R. 3:7-10(d).