Can a plaintiff's lawyer interview former employees of a corporate defendant without the defense lawyer's consent?

Plain-English summary

Plaintiff's counsel in a pollution suit against a corporate defendant wanted to take factual statements from several former employees, who had been dismissed when the plant closed in the mid-1980s and had no current relationship with the company. The defendant's lawyers warned they would invoke Rule 4.2 and seek sanctions if counsel interviewed these former employees. Plaintiff's counsel asked whether Rule 4.2 barred the interviews.

The Disciplinary Commission answered that Rule 4.2 does not prohibit plaintiff's counsel from contacting former employees of a corporate defendant. It relied on RO-92-12 (Rule 4.2 prohibits communication about the subject matter only with a "party" known to be represented) and RO-88-34 (plaintiff's counsel could interview certain current corporate employees without notice or permission). While plaintiff's counsel may not, without notice and permission, interview current employees who can bind the corporate defendant, ex parte contact with a former employee is not subject to the same scrutiny. Quoting RO-92-12, the opinion noted "there is a strong argument that Rule 4.2 does not even apply to former employees at any level."

The opinion identified one possible qualification, drawn from Hazard and Hodes: a former employee who had occupied a managerial position, was involved in the underlying transaction, and was privy to privileged information, including work product, could not be accessed without a valid waiver by the organization or under discovery and evidence rules, but that exception would be restricted to situations where those facts exist. The Commission stated its holding is supported by ABA Formal Opinion 91-359 (1991), attached to the opinion, in which the ABA committee determined that former employees of a corporation could be contacted by plaintiff's counsel without consulting the corporate defendant's counsel, because the former employees were no longer in a position of authority and could not bind the corporation.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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: Can a plaintiff's lawyer interview a corporate defendant's former employees without defense counsel's consent?

A: Per the opinion, yes; Rule 4.2 does not prohibit plaintiff's counsel from contacting former employees of a corporate defendant.

Q: Why are former employees treated differently from current employees?

A: The opinion reasoned that former employees are no longer in a position of authority and cannot bind the corporation, so ex parte contact with them is not subject to the scrutiny applied to current employees who can bind the company.

Q: Is there any limit on contacting former employees?

A: Per the opinion, a possible qualification applies to former managerial employees who were involved in the underlying transaction and privy to privileged or work-product information; accessing that information requires a valid waiver or compliance with discovery and evidence rules.

Background and rules framework

The opinion interprets Rule 4.2 of the Alabama Rules of Professional Conduct (Model Rule 4.2, communication with a person represented by counsel), focusing on whether "party" reaches a corporate defendant's former employees. It relies on the Commission's RO-92-12 and RO-88-34 and on ABA Formal Opinion 91-359.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Ala. R. Prof. C. 4.2 (communication with a represented person; corporate employees)

Other opinions cited:

• ABA Formal Opinion 91-359 (1991): contact with a former employee of an adverse corporate party
• Ala. Formal Op. RO-92-12 (Rule 4.2 reaches only a represented "party")
• Ala. Formal Op. RO-88-34 (contact with certain current corporate employees)

See also

• AL Ethics Op. 1994-04: ex parte contact with current employees of an adverse party
• AL Ethics Op. 1992-12: contacting a former employee of an opposing party

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-05/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-05.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. The opinion attaches the full text of ABA Formal Opinion 91-359; that attachment is not reproduced here and is available in the linked source.

ETHICS OPINION

RO-93-05

QUESTION:

"I am writing to request an opinion from the Alabama State Bar Association in reference to the application of Rule 4.2 which states:

'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.'

We are currently Plaintiff's counsel in a lawsuit against __ Company in _, Alabama. The lawsuit involves allegations that has polluted a plant site and surrounding land since 1960. The plant has been closed for many years. We propose to take the statements of several FORMER employees whose testimony is factual in nature. We are not seeking admissions from these employees which would effectively bind . We are simply trying to ascertain the facts from these former employees concerning what happened and what they saw or know. None of these individuals have a current relationship with ___. They were dismissed when the plant was closed in the mid-1980s.

__'s attorneys have advised me of their intent to invoke Rule 4.2 of the Alabama Rules of Professional Conduct and to seek sanctions if we attempt to interview these employees. I do not agree with _'s position that this Rule should shield them from the consequences of their own wrongdoing and muzzle statements and disclosures of fact from people who have not been employees of ___ for many years. Nevertheless, I feel compelled to write the Bar Association regarding the propriety of taking these statements and whether we will be allowed to take them. We will, of course, abide by any guidelines you suggest if we are allowed to take the statements.

I will await taking these statements until I obtain an opinion from the State Bar. However, time is extremely of the essence since our case is set for trial in September 1993."

ANSWER:

Rule 4.2, Alabama Rules of Professional Conduct, does not prohibit plaintiff's counsel from contacting former employees of a corporate defendant.

DISCUSSION:

In RO-92-12, the Disciplinary Commission held that Rule 4.2 of the Rules of Professional Conduct prohibits communication about the subject matter of the representation only with a "party" known to be represented by other counsel. In RO-88-34, the Disciplinary Commission had held that plaintiff's counsel in a tort claim action could contact and interview certain current corporate employees without the necessity of obtaining permission from the defendant or giving notice to the defendant's attorney.

Plaintiff's counsel may not, without notice and permission, interview current employees who are in a position to bind the corporate defendant. However, ex parte contact with a former employee is not subject to the same scrutiny applied to current employees of a corporate defendant.

As the Commission stated in RO-92-12, "there is a strong argument that Rule 4.2 does not even apply to former employees at any level." One qualification might be, as discussed in Hazard and Hodes in the treatise The Law of Lawyering, those employees who occupied a managerial level position and were involved in the underlying transaction and being privy to privileged information, including work product, which would prohibit plaintiff's counsel from accessing said information without a valid waiver by the organization and/or discovery and evidence rules. However, such an exception would be restricted to situations wherein these facts exist.

The relevant holding of the Disciplinary Commission is supported by ABA Formal Opinion 91-359 (1991), a copy of which is attached hereto. Therein, the ABA Committee on Ethics and Professional Responsibility determined that former employees of a corporation could be contacted by plaintiff's counsel without consulting with the corporate defendant's counsel since the former employees were no longer in a position of authority, and, thus, could not "bind" the corporation.