Can a lawyer who also represents some of the opposing company's managerial employees in unrelated cases talk to them ex parte about the main lawsuit?

Plain-English summary

A plaintiffs' employment-discrimination lawyer had about twenty cases pending against a single defendant employer. Some plaintiffs were hourly employees (the ADA cases); other clients were managerial or supervisory employees he had represented before taking the ADA cases, in unrelated sex, race, and national-origin claims. The defendant's lawyer designated one of the managerial clients as a defense witness in the ADA cases and told the plaintiffs' lawyer not to contact that person. The lawyer asked how Rule 4.2 limited his ongoing contact with his own managerial clients, and what the defendant's lawyer could do.

The Commission concluded that whether the lawyer can talk with these clients about matters outside their own cases depends on the level of their authority within the defendant's personnel structure. It also concluded the defendant may talk with the lawyer's clients about the unrelated cases involving the defendant, because those clients are not represented in those matters.

The opinion traced the rule from the former Code (RO-88-34 had barred ex parte contact under DR 7-104(A)(1) with an organization's executive officers, those who could bind the organization, or those whose conduct could create vicarious liability) to Rule 4.2, effective January 1, 1991. Reading the Comment to Rule 4.2, the Commission identified three protected categories: persons with managerial responsibility (understood as the "control group" authorized to act or speak for and legally bind the organization), persons whose acts or omissions in the matter may be imputed to the organization for civil or criminal liability, and persons whose statements may be admissions on the organization's part. The opinion explained that having a supervisory title does not by itself put an employee in the control group. If the lawyer's managerial/supervisory clients are not in the control group, he may talk with them about anything regarding the ADA cases; if they are protected, he may talk with them only about their own particular cases. Defense counsel may talk with those clients about the cases of others because the plaintiffs' lawyer does not represent them in those matters.

Currency note

This opinion was issued in 1994, 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 lawyer keep talking to a company's managerial employees if he separately represents them in unrelated cases?

A: Per the opinion, he may always discuss the employees' own matters; whether he may discuss the opposing company's case depends on whether those employees fall within the organization's control group under Rule 4.2.

Q: Which of an organization's employees are protected from ex parte contact under Rule 4.2?

A: The opinion read the Comment to Rule 4.2 as covering three groups: those with managerial responsibility who can bind the organization (the control group), those whose act or omission in the matter may be imputed to the organization for liability, and those whose statements may be admissions of the organization.

Q: Does a supervisory title alone make an employee off-limits?

A: No. The opinion concluded that many employees hold a supervisory position of one sort or another but are not necessarily authorized to speak for the organization officially; only those in the control group are protected on that basis.

Q: Can the defendant's lawyer talk to the plaintiffs' managerial clients?

A: Yes, about the cases of others. The opinion concluded defense counsel may speak with those employees about the other cases because the plaintiffs' lawyer does not represent them in those matters.

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, and contrasts it with the former DR 7-104(A)(1) standard applied in RO-88-34. The analysis turns on the Comment to Rule 4.2 and its three categories of protected organizational constituents, with the "control group" reading governing employees who have a managerial title but lack authority to bind the organization.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Ala. R. Prof. C. 4.2 (communication with a represented person; the Comment's organizational categories)
• Former Code DR 7-104(A)(1) (predecessor restriction on contact with a represented party)

Other opinions cited:

• Ala. RO-88-34: ex parte contact with an organization's employees under the former Code

See also

• AL Ethics Op. 1988-34: Interviewing Opponent's Staff
• CBA Formal Op. 71: Ex Parte Contact With Treating Physicians
• CA Op. 1985-85: ex parte contact with a represented party's witnesses

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1994-11/
• Original PDF: https://www.alabar.org/assets/2019/02/1994-11.pdf

Original opinion text

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

ETHICS OPINION

RO-94-11

QUESTION:

"This is to request a formal opinion concerning the rather unusual situation which I discussed with you by phone on August 31, 1994, concerning contact with prospective witnesses employed by the defendant.

I primarily represent plaintiffs in employment discrimination cases and presently have about twenty cases pending against one particular defendant. Of those twenty cases, twelve to fourteen are consolidated cases based upon the 'Americans With Disabilities Act'; two or three involve race discrimination claims; two of the cases involve sex claims; and one of the cases involved a national origin claim. Each type claim is unrelated to the other claims. The ADA claims are hourly employees and the other clients are managerial employees. I have represented the managerial employees for some time and began representing them prior to my undertaking the representation of the plaintiffs in the ADA cases.

All of the cases which are addressed above are continuing matters upon which I must communicate with my clients on a fairly regular basis.

Recently, the defendant's attorney designated one of my clients in the sex case as defendant's prospective witness in the ADA cases and noted that this individual should not be contacted by me because conversations would be protected by the defendant's attorney-client privilege.

Obviously, it will be necessary for me to continue to have ex parte communications with my clients who are managerial/supervisory personnel. I can advise these individuals that they are not to discuss the ADA case or each others' cases with me. This causes some real practical problems, particularly since one particular supervisory employee has referred several of the plaintiffs to me and advised me in doing so of his belief that they have been the subject of discrimination.

RO-94-11

In light of the aforesaid, I need to have an opinion with respect to the following:

1. What are my ethical obligations with respect to discussions with my managerial/supervisory clients who have knowledge of the defendant's general employment policy matter; and

2. What are my ethical obligations with respect to discussions with my managerial/supervisory clients who have referred other employees to me, who may have knowledge of specific discriminatory acts which may have been committed by higher managerial employees; and

3. What are the defendant's ethical obligations with respect to speaking to my managerial/supervisory clients concerning other individuals' cases.

As these cases are presently pending, I would appreciate your advising as to what I should do in this rather complicated situation."

ANSWER:

Whether you can talk with your so-called "managerial/supervisory clients" about matters outside their own cases depends on the level of their authority within the defendant's personnel structure. The defendant can talk with your clients about unrelated cases involving the defendant because they are not represented in those matters.

DISCUSSION:

In RO-88-34, the Disciplinary Commission essentially held that ex parte contact of an organization's employees was not ethically proper under DR 7-104(A)(1) if the employee was an executive officer; or, someone who by virtue of their position, could bind the organization by their testimony, or someone for whose conduct the organization could be held vicariously liable. On January 1, 1991, the Alabama Rules of Professional Conduct became effective. Rule 4.2 deals with the issue of communicating with a person represented by counsel. The Comment to Rule 4.2 states as follows:

"In the case of an organization, this Rule prohibits communications 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."

In analyzing these three categories of "protected" employees, it is the Disciplinary Commission's understanding that "persons having a managerial responsibility on behalf of the organization" was intended to cover employees who have been given the authority to formally act or speak for the organization, and can legally bind it. Employees of this status are usually found in the "control group" of the organization. While many employees may have a supervisory position of one sort or another, they are not necessarily authorized to speak for the organization in an official sense. Only those employees are protected by this rule.

The other two exceptions referred to in the Comment cover persons actually responsible for the conduct giving rise to the organization's potential liability regardless of status in the organization and employees whose statements would be admissible under evidentiary rules like Rule 801(D)(2)(d) of the Federal Rules of Evidence dealing with admission by a party-opponent.

If your clients with "managerial/supervisory" duties are not in the control group of the organization, then you can talk with them about anything regarding the ADA cases, either general or specific to the cases. If the clients are protected by application of the above discussion, then you can only talk to them about their own particular cases. Defense counsel can talk with your managerial/supervisory clients about the cases of others because your clients are not represented by you or anyone else in those matters.

MLM/s/f

9/22/94