Can a lawyer take a statement from an employee of a represented corporate opponent, and does it depend on the employee's rank?

Plain-English summary

A firm suing a nursing-home corporation, which was represented by counsel, learned during a deposition that an employee had information possibly vital to the case and might have been the one who committed the alleged negligent act. The client asked the firm to take the employee's statement. The firm asked whether doing so would be an ethical violation, and how the answer would change if the employee were a supervisor, a nurse's aide, or an LPN, understanding that the determining issue was whether the employee could bind the corporation by her statement.

The Disciplinary Commission concluded, consistent with its recent opinions and DR 7-104(A)(1), that it is ethically permissible to speak with an employee of a defendant corporation without the corporation's lawyer's knowledge or consent if that person is not in a position to bind the corporation and is not the alleged tortfeasor or the person whose actions predicated the lawsuit. Whether a particular employee can bind the corporation is a legal determination beyond the Commission's authority. It cautioned that additional investigation was indicated on these facts as to whether the employee was the actual tortfeasor, because contact in that event would be improper.

The Commission emphasized it was not endorsing the practice. It cited the lawyer's duty to respect the rights of third persons under Rule 4.4 (no means whose only substantial purpose is to embarrass, delay, or burden a third person, and no methods of obtaining evidence that violate a person's legal rights) and Rule 4.3 (a lawyer dealing with an unrepresented person must not state or imply that the lawyer is disinterested and must correct any misunderstanding of the lawyer's role). It adopted the Comment to Rule 4.2, which limits the prohibited contacts to employees with managerial responsibility, those whose act or omission may be imputed to the organization, or those whose statement may constitute an admission. While contact with such an employee may be permissible, the Commission said, it is not recommended and should be undertaken with a clear view of the mandates of Rules 4.3 and 4.4.

Currency note

This opinion was issued in June 1990, at the transition from the former Alabama Code of Professional Responsibility (DR 7-104(A)(1)) to the Alabama Rules of Professional Conduct effective January 1, 1991, which the opinion itself cites (Rules 4.2, 4.3, and 4.4). It predates the 2002 Ethics 2000 revisions to the ABA Model Rules. Communication with represented persons is now governed by Rule 4.2, dealings with unrepresented persons by Rule 4.3, and respect for the rights of third persons by Rule 4.4. 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 take a statement from an employee of a represented company opponent?

A: Per the opinion, yes, without the company's lawyer's consent, only if the employee cannot bind the corporation and is not the alleged tortfeasor or the person whose actions gave rise to the suit.

Q: Does the employee's job title settle it?

A: The opinion concluded the controlling question is whether the employee can bind the corporation (or has managerial responsibility, or whose act may be imputed or statement may be an admission), and that this is a legal determination beyond the Commission's authority.

Q: Is contacting such an employee a good idea?

A: The opinion concluded that even when permissible, the contact is not recommended, and it must respect Rules 4.3 (unrepresented persons) and 4.4 (rights of third persons).

Background and rules framework

The opinion interpreted former DR 7-104(A)(1) and the incoming Alabama Rules of Professional Conduct 4.2 (communication with represented persons), 4.3 (dealings with unrepresented persons), and 4.4 (respect for the rights of third persons), adopting the Comment to Rule 4.2's definition of which corporate employees count as the represented party.

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 7-104(A)(1); now Model Rule 4.2
• Ala. R. Prof. C. 4.2 (and Comment), 4.3, 4.4 (cited by the opinion); Model Rules 4.2, 4.3, 4.4

See also

• AL Ethics Op. 1988-34: interviewing a corporate opponent's low-level employees
• AL Ethics Op. 1992-12: ex parte contact with an opposing party's former 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/1990-79/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-90-79.pdf

Original opinion text

ETHICS OPINION

RO-90-79

Lawyer may not communicate with employee of opposing party if employee has managerial responsibility on behalf of the opposing party and can bind the opposing party

QUESTION:

A lawsuit has been filed against a defendant nursing home corporation. This nursing home corporation is represented by an attorney. During the course of a deposition, it was discovered that an employee of the nursing home had possible information that would be vital to the outcome of the case. It is also possible that this employee was the employee who actually committed the alleged negligent act. My client has asked our firm to take a statement from this employee. Is it an ethical violation to take a statement from this employee of the nursing home when the nursing home itself is represented by another attorney? At this time, I do not believe the individual employee has retained an attorney. It is my understanding this person is not a supervisor, but please render an opinion as to the ethical implications if this person were:

a. A supervisor.
b. A nurse's aide.
c. An LPN.

My understanding is the determining issue is whether or not this person can in any way bind the corporation by her statement. Please render an opinion as to the ethical implications mentioned above."

ANSWER:

In several recent opinions the Disciplinary Commission has opined that it is permissible for an attorney to take a statement from an employee of a defendant corporation when that employee is not "in a position to bind" the defendant. These opinions are based upon the Commission's understanding of case law in Alabama and further upon an application of Disciplinary Rule 7-104(A)(1), which states as follows:

"DR 7-104 ***

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

The determination of whether an employee of a corporation is in a position to bind that corporation is a legal determination and is beyond the scope of this opinion or the authority of the Commission to decide. Accordingly, we can do no more in response to your query than to state, as we have in the past, that it is ethically permissible for you to speak with the employee of a defendant corporation, without the knowledge or consent of the attorney for that corporation, if the person with whom you speak is not in a position to bind that corporation and is not the alleged tort-feasor or person whose actions have predicated the lawsuit. You should also be mindful that additional investigation is indicated, on these facts, as to the issue of whether this employee is the actual tortfeasor since contact, in that event, would be improper.

We believe that it would also be appropriate at this time to indicate that by so holding we are not flashing a green light at Alabama lawyers and endorsing this practice. The Code of Professional Responsibility and the Rules of Professional Conduct both impose an ethical responsibility upon a lawyer to respect the rights of third persons. Rule 4.4 of the Alabama Rules of Professional Conduct provides that a lawyer, in representing a client, shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. In addition, Rule 4.3, which is entitled "Dealing With Unrepresented Person", states as follows:

"In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."

Accordingly, while contact with such an employee may be permissible, it is not recommended and should be undertaken with a clear view of the ethical mandate of Rules 4.3 and 4.4.

DISCUSSION:

The Comment to Rule 4.2 of the Alabama Rules of Professional Conduct, which is analogous to DR 7-104(A)(1) previously cited, states in pertinent part, as follows:

"... this Rule prohibits communication by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule."

For purposes of this opinion we adopt the terms of this Comment to the Rules of Professional Conduct as a part of the standard to be observed when operating pursuant to this opinion.

AWJ/vf

6/28/90