Can a lawyer contact a former employee of an adverse corporation, without the corporation's lawyer's consent, to discuss the subject of the representation?

Plain-English summary

The committee was asked whether a lawyer representing a client adverse to a represented corporation may, without consent of the corporation's lawyer, communicate about the matter with an unrepresented former employee of that corporation. Starting from Rule 4.2, which bars communicating about the subject of the representation with a "party" known to be represented, the committee read the rule and its comment to reach present employees whose conduct may be imputed to the organization or whose statements may be admissions, but not former employees. Its conclusion was direct: "the prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party."

The committee declined to read an extension into the rule. It noted that the text and comment defined the protected category by reference to the organization's present agents, and observed that while it might be argued that contact with some former employees should be barred, the rule as written did not do so, "at least in absence of a showing that the employee possessed privileged information." The opinion left the policy judgment about broader protection to rule-drafting rather than interpretation.

The committee paired the holding with limits drawn from the other Rule 4 provisions. A lawyer contacting a former employee must comply with Rule 4.3, which governs dealings with unrepresented persons and requires the lawyer not to state or imply disinterest and to correct misunderstandings about the lawyer's role, and with Rule 4.1's requirement of truthfulness. Most importantly, the opinion cautioned that the lawyer "must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications," noting that such an attempt could violate Rule 4.4 (respect for the rights of third persons). The privilege belongs to the former employer, not the former employee, so the lawyer may not use the interview to extract privileged material.

Currency note

This opinion was issued in 1991, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which revised Rule 4.2 and its comments. Subsequent rule amendments and later opinions may have changed the analysis, and several jurisdictions have adopted their own positions on contacting former employees. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a lawyer interview a former employee of the opposing company without its lawyer's permission?

A: Yes. The committee concluded that Rule 4.2 does not extend to former employees, so the no-contact rule did not require the consent of the corporation's counsel.

Q: Did it matter that the former employee was unrepresented?

A: Yes. The opinion addressed unrepresented former employees and applied Rule 4.3, which requires the lawyer not to imply disinterest and to correct any misunderstanding about the lawyer's role. If the former employee had his own counsel, that counsel's consent would be needed.

Q: Could the lawyer ask about privileged communications the former employee had with company counsel?

A: No. The opinion warned that the lawyer must not seek to induce the former employee to violate the corporation's attorney-client privilege, and that doing so could violate Rule 4.4.

Background and rules framework

The opinion interpreted Rule 4.2 (communication with a person represented by counsel), reading its comment to cover present employees with managerial responsibility or whose acts or statements may bind the organization, but not former employees. It applied Rule 4.3 (dealing with an unrepresented person), Rule 4.1 (truthfulness in statements to others), and Rule 4.4 (respect for the rights of third persons, including the former employer's privilege). The committee treated Rule 4.2 as substantially identical to predecessor Code provision DR 7-104(A)(1). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person)
• MR 4.3 (dealing with an unrepresented person)
• MR 4.1 (truthfulness in statements to others)
• MR 4.4 (respect for the rights of third persons)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383 (1981), corporate attorney-client privilege

See also

• ABA Formal Op. 06-443: Contact with an organization's inside counsel
• ABA Formal Op. 07-445: Contact with putative class members before certification
• ABA Formal Op. 502: Communication with a represented person by a pro se lawyer
• RI EAP Op. 2002-01: Duty to a Former Client After Termination, and Rule 4.2 Contact Restrictions
• RI EAP Op. 2011-03: Ex Parte Meeting With a Corporate Defendant's Former Employee Who Was Represented by Counsel at Deposition

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 91-359.pdf