Can a plaintiff's lawyer interview a corporate defendant's employee witnesses without going through the corporation's lawyer?

Plain-English summary

A firm representing a plaintiff with a tort claim against a corporation wanted to contact and interview employees of the defendant who witnessed the incident. It asked whether any ethical rule forbade direct contact, and whether the answer changed depending on whether suit had been filed and counsel had appeared for the corporation.

The Disciplinary Commission concluded the firm may directly contact and interview certain employee witnesses of the defendant without obtaining the defendant's permission or giving notice to the defendant's attorney. Drawing on its prior opinions (RO-84-160, RO-86-125, RO-88-27, among others) and ABA Informal Opinions 1377 and 1410, it held that a lawyer may not interview, without notice and permission, witnesses who are in a position to bind the defendant. The contact may be initiated whether suit has been filed or is merely anticipated.

The request specified that the employees to be interviewed were "low-level" employees who fell into none of three categories: executive officers of the adverse party; employees who, by the terms of their employment or position, could bind the adverse party by their testimony; or witnesses who were actually the tortfeasors and for whose conduct the adverse party could be held liable. Given that limitation, the Commission concluded the contact with the prospective witnesses would be permissible and would entail no ethical prohibition other than those noted.

Currency note

This opinion was issued in 1988, under the former Alabama Code of Professional Responsibility (DR 7-104(A)(1)) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. Communication with represented persons, including the question of which corporate employees count as the represented "party," is now governed by Rule 4.2 and its comments. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer interview a corporate opponent's employees without going through its counsel?

A: Per the opinion, yes, as to lower-level employee witnesses who cannot bind the adverse party, are not executive officers or managers, and are not the actual tortfeasors; their interview requires no permission from or notice to opposing counsel.

Q: Which employees are off-limits without consent?

A: The opinion concluded a lawyer may not interview, without notice and permission, witnesses in a position to bind the defendant, such as executive officers, those whose position lets them bind the party by their testimony, or the actual tortfeasors whose conduct could expose the party to liability.

Q: Does it matter whether suit has been filed yet?

A: The opinion concluded the contact may be initiated whether suit has been filed or is merely anticipated.

Background and rules framework

The opinion interpreted former DR 7-104(A)(1) of the Alabama Code of Professional Responsibility (no communication with a represented party on the subject of the representation without the consent of that party's lawyer), as applied to the employees of a corporate party. That subject is now governed by Rule 4.2, whose comments draw the line at employees who supervise, direct, or consult with the organization's lawyer, whose act or omission may be imputed to the organization, or whose statement may constitute an admission.

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 7-104(A)(1) (no contact with a represented party without counsel's consent); now Model Rule 4.2

Other opinions cited:

• RO-84-160, RO-86-125, RO-88-27 (prior Alabama opinions on contacting opposing-party employees and unrepresented prospective defendants)
• ABA Committee on Ethics and Professional Responsibility Informal Opinions 1377 (1977) and 1410 (1978)

See also

• AL Ethics Op. 1992-12: ex parte contact with an opposing party's former employee
• AL Ethics Op. 1990-79: limits on communicating with an opposing party's employee
• AL Ethics Op. 1994-04: ex parte communication with employees of an adverse party

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1988-34/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-88-34.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-88-34

QUESTION:

"Our firm represents a plaintiff who has a tort claim against a corporation. Certain employees of the defendant witnessed the incident and possess facts which we need to know in order to properly prepare our client's case. The defendant, of course, has the advantage of immediate and informal access to these witnesses.

Our question is whether there is any ethical prohibition forbidding us to directly contact and interview these witnesses? Is the opinion altered if the contact is initiated and (1) before suit is filed and (2) after suit is filed and counsel has appeared for the defendant corporation?"

ANSWER:

The Disciplinary Commission has addressed this question previously and has, in Opinions RO-84-160, 86-125, and RO-88-27, among others, established certain guidelines in this area. Specifically, you may directly contact and interview certain employee witnesses of the defendant, without the necessity of obtaining permission from the defendant or giving notice to the defendant's attorney. You may not interview, without notice and permission, witnesses who are in a position to bind the defendant (RO-84-160, citing ABA Informal Opinions 1377 and 1410). The Disciplinary Commission has stated in RO-88-27, when discussing the permissibility of obtaining information from the employee of a corporate defendant that the attorney need not "... obtain the consent of counsel for the corporation and/or the officer by whom the prospective witness is employed. However, we further note that in reaching this conclusion, we have accepted the premise that the employee who is to be interviewed is not an agent of the corporation and is not in a position to act in a binding capacity for the corporate defendant."

Further, such contact may be initiated without reference to whether suit has been filed or is merely anticipated. It is noted that in Opinion RO-86-125, the Commission addressed the issue of direct contact not only with a potential witness but also with a prospective non-represented defendant. A copy of that opinion is also attached.

DISCUSSION:

You have stated in your request for opinion that the employees you wish to interview are "low level" employees who do not fall into any of the three following categories, to-wit: employees who are executive officers of the adverse party; employees who, by virtue of the terms of their employment or position, could bind the adverse party by their testimony; or, witnesses who are actually the tort feasors and for whose conduct the adverse party could be held liable. Given the number of opinions on this subject cited above, and the limitations indicated in your request, your contact with the prospective witnesses would be permissible and would entail no ethical prohibitions other than those noted.

AWSJ/vf

6-30-88