Can a lawyer interview a former employee of an opposing corporate party ex parte, without going through the company's counsel?

Plain-English summary

A lawyer had two pending suits against a credit union, with the credit union's president named as a defendant. The president's former secretary had retained the same lawyer's firm in a separate sex-discrimination matter. While employed, the secretary had typed and received correspondence to and from the credit union's legal counsel about the two pending cases and had specific conversations with the president about them. The lawyer asked whether Rule 4.2 or any other rule barred him from asking the former secretary about facts she knew concerning the two pending cases.

The Disciplinary Commission concluded the lawyer was not precluded from communicating with this former employee on the facts described. The opinion explained that Rule 4.2 bars communication about the subject of a representation with a represented "party," and that, under RO-88-34, plaintiff's counsel could contact and interview current corporate employee-witnesses, but not without consent where the employee is an executive officer who could bind the adverse party, or was the actual tortfeasor whose conduct gave rise to the claim. Ex parte contact with a former employee is not subject to the same scrutiny; there is a strong argument Rule 4.2 does not apply to former employees at any level, because a former employee cannot speak for the corporation. The opinion cited ABA Formal Opinion 91-359 (1991), which states that former employees of a corporation may be contacted without consulting the corporation's counsel because they are no longer in positions of authority and cannot bind the corporation.

The opinion qualified this in two ways: contact with a former employee is permissible unless the ex parte contact is intended to deal with privileged matter, meaning asking the former employee to divulge prior communications with the adverse party's legal counsel made for purposes of advising the adverse party in the litigation; and if the former employee was the actual person giving rise to the cause of action, contact is permissible so long as that person is not represented by counsel.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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: Does Rule 4.2 bar contacting an opposing party's former employee?

A: Per the opinion, no, not on these facts. A former employee cannot speak for or bind the corporation, so ex parte contact is permissible, unlike the restricted contact with certain current employees.

Q: What is the exception for privileged matter?

A: The opinion stated contact is not permissible to the extent it is intended to elicit the former employee's prior communications with the adverse party's counsel made to advise the adverse party in the litigation or claim.

Q: What if the former employee was the person who caused the claim?

A: The opinion stated contact is still permissible so long as that person is not represented by counsel.

Background and rules framework

The opinion interprets Rule 4.2 (Model Rule 4.2, communication with a person represented by counsel) of the Alabama Rules of Professional Conduct, noting it is the successor to former Alabama DR 7-104(A)(1), and applies it to former (as opposed to current) employees of an opposing corporate party.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Ala. R. Prof. C. 4.2 (communication with a represented person)
• Former Alabama DR 7-104(A)(1) (predecessor provision)

Other opinions cited:

• RO-88-34: contact with current corporate employee-witnesses; limits for executives and tortfeasors
• ABA Formal Opinion 91-359 (1991): former employees may be contacted without the corporation's counsel

See also

• AL Ethics Op. 1990-79: communicating with an employee of an opposing party
• AL Ethics Op. 1988-34: contacting an employee of an opposing party without notice
• RI EAP Op. 2011-03: Ex Parte Meeting With a Corporate Defendant's Former Employee Who Was Represented by Counsel at Deposition
• RI EAP Op. 2012-02: Rule 4.2 Permits Ex Parte Communication With a Former Employee of an Adverse Corporate Party Without Opposing Counsel's Consent

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-12/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-12.pdf

Original opinion text

ETHICS OPINION

RO-92-12

Lawyer may contact former employee of opposing party ex parte unless contact is intended to deal with privileged matter

QUESTION:

"I have filed two (2) complaints against Acme ("Acme"), copies enclosed. The suit in __ County is a proposed class action which alleges improper mortgage balances and interest rates charged to Acme customers. The suit charges Acme with fraud and breach of contract. The crux of the complaint filed in ____ County is outrage, slander, invasion of privacy and intentional infliction of emotional distress arising out of the branch manager's treatment of an Acme customer.

The credit union President, __, has been named as a defendant in both suits. Mr. _'s former secretary, has retained our firm to represent her in connection with sex discrimination arising out of Mr. 's treatment of Mrs. when she became pregnant and took maternity leave. Upon return after maternity leave, Mrs. ___ learned that she had been replaced.

As stated, Mrs. __ was employed by Acme as Mr. _'s secretary. She types correspondence to and received correspondence from Acme's legal counsel pertaining to the two (2) cases I already have pending. She also had specific conversations with Mr. ___ about the two (2) cases I have pending.

We need a written opinion as to whether Rule 4.2 or any other rule of Professional Conduct precludes me from asking Mrs. ______ about facts or information she knows concerning the two (2) previously filed cases."

ANSWER:

You are not precluded from communicating with this former employee under the set of facts you have described in your request.

DISCUSSION:

Rule 4.2 of the Rules of Professional Conduct prohibits communication about the subject matter of the representation with a "party" known to be represented by other counsel. Consent of the other counsel obviates the problem. Rule 4.2 is a successor to Alabama DR 7-104(A)(1) and the two provisions are substantially identical. In RO-88-34 (also published in The Alabama Lawyer), the Disciplinary Commission held that a plaintiff's counsel in a tort claim action could contact and interview current corporate employees/witnesses. There can be no ex parte contact when the employee is an executive officer of the adverse party or could otherwise legally bind the adverse party by his/her testimony, or if the employee was the actual tort feasor or person whose conduct gave rise to the cause of action. In any of these situations, prior consent of counsel for the adverse party would be required.

Ex parte contact with a former employee, as here, is not subject to the same scrutiny. In fact, there is a strong argument that Rule 4.2 does not even apply to former employees at any level. A former employee cannot speak for the corporation. The ABA Committee on Ethics and Professional Responsibility in Formal Opinion 91-359 (1991) stated that former employees of a corporation may be contacted without consulting with corporation's counsel because they are no longer in positions of authority and thus, cannot bind the corporation. The Disciplinary Commission believes that contact with a former employee is ethically permissible, unless the ex parte contact is intended to deal with privileged matter, i.e., the inquiring counsel is asking the former employee to divulge prior communications with legal counsel for the adverse party, and these communications were conducted for purposes of advising the adverse party in the litigation or claim. If the former employee was the actual person giving rise to the cause of action, contact is also permissible so long as that person is not represented by counsel.

MLM/vf

7/13/92