dissenting.
I respectfully dissent. The majority opinion holds that the Court of Appeals correctly denied the appellants’ writ of mandamus requesting that opposing counsel be disqualified for improper ex parte contacts. I disagree and would reverse the Court of Appeals.
The majority declines to address the issue of whether Tachau violated SCR 3.130-4.2 because the trial court made no *111finding of fact on the issue. Rather, the majority disposes of this case on grounds that appellants have failed to show irreparable harm. While disingenuous, this tactic is necessary to avoid the clear dictates of Shoney’s, Inc. v. Lewis, Ky., 875 S.W.2d 514 (1994), which mandates a granting of the writ in this case.
In Shoney’s, based on the record, we made our own independent determination of the following factual and legal issues: (1) whether appellant’s “managerial employees were represented parties for purposes of [SCR 3.130-4.2];” and (2) “whether [SCR 3.130-4.2] applies both before and after formal proceedings have begun.” Id. at 515. After answering both of these questions in the affirmative, we held “that communication between Herr’s counsel and Lee’s managerial employees was improper.” Id. at 516. Thus, under Sho-ney’s, it is entirely appropriate for us to make the determination as to whether Ta-chau violated SCR 3.130-4.2. Moreover, independent of the Shoney’s decision, there is a compelling reason for this Court to determine whether Tachau violated the rule.
SCR 3.130-4.2 is our rule. Who better than this Court to determine whether the rule has been violated? Thus, regardless of whether the trial court made a finding of fact as to whether the rule had been violated, I believe it is our obligation and our duty to make an independent determination of whether our rules have been violated. That is, I would hold that whether a Supreme Court Rule has been violated is subject to a de novo review by this Court. Further, based on the record, I would hold that Tachau’s contact with Auerbach did violate SCR 3.130-4.2.
In the instant case, counsel for the appellants sent two (2) letters advising opposing counsel that they did not have permission or authority to contact or interview employees falling within the scope of the Shoney’s decision. The second letter specifically enumerated “past or present employees.” Further, the trial court entered an order prohibiting the plaintiffs from conducting any ex parte communications. In the order, the trial court stated “that any employee who has been interviewed by University counsel and who has relied upon his advice, would be covered by this prohibition.” Minx Auerbach, a former Chair of the University’s Board of Trustees, the University’s sole governing body, was among those included by this prohibition on ex parte contact. Auerbach served on the Board of Trustees while the alleged abusive behavior occurred as well as during substantial portions of the litigation process. As a result, Auerbach was privy to among the most confidential and sensitive attorney-client discussions concerning the underlying action and related litigation.
Against this backdrop, Tachau approached Auerbach at a social function, scant weeks before the scheduled trial. Tachau had deposed Tom Lyons and John Shumaker, in their capacity as University officials, one week prior to this party. In the deposition he asked whether any Board of Trustees member had inquired about this case. Lyons named Auerbach as such a Board of Trustees member. One week after this deposition, at a party in his father’s home, Tachau initiated a conversation with Auerbach regarding that deposition. Tachau never disclosed that he was involved in a lawsuit against the University. He told Auerbach that her name had come up in a “meeting” with Lyons, rather than at a deposition. He then began a discussion with Auerbach regarding the case and her involvement as a Board of Trustees member.
SCR 3.130-4.2, provides:
In representing a client, a lawyer shall not communicate about the subject matter 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.
*112This rule is straightforward and simple to understand. An attorney who represents a party in real interest shall not communicate with a party represented by another attorney regarding the subject matter of the representation, absent permission. Counsel for appellants clearly put Tachau on notice that he was not to contact any present or former employee. This notice surely included a former Chair of the Board of Trustees. Further, the trial court issued an order prohibiting any ex 'parte contact with any employee who had been interviewed by University counsel and who had relied upon his advice.
Having determined that Tachau’s actions were improper, the inquiry turns away from whether appellants can show actual prejudice. Rather, pursuant to Sho-ney’s, the appropriate inquiry is whether there exists a “possibility of prejudice at trial that might result from the attorney’s unethical act with any doubt to be resolved in favor of disqualification.” Id., quoting Papanicolaou v. Chase Manhattan Bank, N.A., 720 F.Supp. 1080 (S.D.N.Y.1989) (emphasis added). Upon review of the record, I conclude that the appellants met their burden of showing the possibility of prejudice from Tachau’s improper actions.
Tachau knew that Auerbach had been the Chair of the Board of Trustees during a substantial portion of the litigation process and that she would be covered by the attorney-client privilege by virtue of her position. Tachau went fishing for information contrary to the trial court’s order, as well as in violation of SCR 3.130-4.2. The harm done need not be measured in concrete terms of damage to this particular case. Rather, the harm is to the adversarial process.
“Despite the increased liberality of the Civil Rules and forms of discovery, the rules do not contemplate discovery of privileged information between attorney and client. While it is the duty of an attorney to represent his client zealously, it is also his duty to represent him within the bounds of law.” Opinion KBA E-65. Ta-chau stepped outside the bounds of law when he consciously disregarded both the trial court and SCR 3.130-4.2. When the integrity of the adversarial process is at stake, disqualification is the only proper course of action.
Finally, Lovell v. Winchester, Ky., 941 S.W.2d 466 (1997), supports granting the writ in this case. Lovell, like the case at bar, was an appeal from a Court of Appeals’ decision denying a petition for a writ of mandamus to compel the trial court to disqualify opposing counsel. Id. at 467. The appellants argued that the writ was appropriate because of an alleged conflict of interest. Id. In Lovell, we concluded that the issue of whether the appellants showed actual prejudice was irrelevant to the issue of whether the writ was appropriate:
Although King argues that Appellants cannot demonstrate how his representation of Kidd would harm their case, we believe that the situation creates a perception of betrayal and disloyalty which cannot be condoned. To sanction this professional conduct merely on the claim that he recalls nothing of the prior contact impairs public confidence in the legal system. Further, there is the potential to prejudice clients in the employ of legal counsel. Maintaining public confidence in the legal system requires that preservation of client confidence should outweigh the interests of individual lawyers and individual clients in freely contracting with each other. Client confidence should prevail among these competing interests. Thus, we are of the opinion that granting the extraordinary relief requested by Appellants is consistent with the goals of KRE 503 and the policies underlying the Rules of Professional Conduct.
Id. at 467-68.
We then went on to hold that the showing of the mere appearance of impropriety was sufficient grounds to justify granting the extraordinary remedy of the writ. Id. *113at 469. Tachau’s improper contact with Auerbach clearly creates the appearance of impropriety. Justice Graves correctly stated the reason for the holding in Lovell when he declared, “the mere appearance of impropriety is just as egregious as any actual or real conflict.” Id. at 469. The same rings true in the case at bar.
Therefore, I would reverse the Court of Appeals and remand with directions to grant the writ.
GRAVES, J., joins this dissent.