Can a lawyer for the opposing party interview former employees of a represented corporation without corporate counsel's permission?

Plain-English summary

The Committee was asked whether an attorney violates the disciplinary rules by speaking with the former employees of a corporate opposing party, where the attorney wishes to question former employees who dealt closely with the transaction underlying the litigation. The opinion concluded that an attorney representing an opposing party may contact former employees of the corporation, including former members of the corporation's control group, without the permission of corporate counsel.

The opinion set out two limits. The attorney may still be prohibited from contacting a former employee who is individually represented on the pending matter, and the attorney may not inquire into privileged attorney-client communications, may not listen while a former employee tries to reveal privileged communications, and cannot treat the privilege as waived (only the corporation that holds the privilege can waive it). The opinion also noted that where a lawyer communicates with an unrepresented person, the lawyer should not give advice but may suggest the person seek a lawyer.

The opinion grounded its conclusion in DR 7-104(A)(1) and in a survey of sister-bar authority. It explained that most authorities restrict the protection for corporate parties to managerial or other employees whose acts or statements can bind or be imputed to the corporation. Because a former employee can no longer act or speak for the corporation, that reasoning excludes former employees from the rule's protection even if they were once part of the control group; direct contact with former "control" employees does not deprive the corporation of counsel, any more than contact with a bystander witness does. The opinion therefore concluded that an attorney does not violate DR 7-104(A)(1) by communicating directly with an organization's former employees about the substantive dispute without the consent of the organization's counsel.

Currency note

This opinion was issued in 1988, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). It was reconsidered and reaffirmed in Alaska Ethics Opinion 91-1. 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 represented corporation's former employees without asking corporate counsel?

A: The opinion concluded a lawyer may, because former employees can no longer bind the corporation, so they fall outside the protection of DR 7-104(A)(1).

Q: Does it matter that a former employee was once in the control group?

A: No. The opinion concluded the contact is permitted even for former control-group members, because once they leave the corporation they can no longer act or speak for it.

Q: What are the limits on the interview?

A: The opinion concluded the lawyer may not contact a former employee who is individually represented on the matter, and may not inquire into or listen to privileged attorney-client communications, which only the corporation can waive.

Q: What if the former employee is unrepresented and seeks the lawyer's advice?

A: The opinion concluded the lawyer should not give the unrepresented person advice, though the lawyer may suggest that the person retain a lawyer.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) of the former Alaska Code of Professional Responsibility, the no-contact rule that is the analog of Model Rule 4.2. It applied the principle that, for an organization, the rule protects only constituents with authority to bind the corporation or whose statements may be imputed to it, and concluded that former employees fall outside that protection. It drew on its own Opinion 84-11 and on opinions from several other bars.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 7-104(A)(1) (communication with a represented party) (cf. Model Rule 4.2)

Other opinions cited:

• Alaska Ethics Opinion 84-11; Maryland State Bar Opinion 86-13; Association of the Bar of the City of New York Opinion 80-46; Illinois State Bar Opinion 85-12; Colorado Bar Opinion 69 (Rev. 1987); ABA Informal Opinion 1410

See also

• Alaska Ethics Op. 91-1: Contacting Former Employees
• Alaska Ethics Op. 90-1: Contacting a Represented Board
• Alaska Ethics Op. 94-1: Contacting a Government Board

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/88-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
Ethics Opinion No. 88-3
RE:

Communication with Former Employees of Corporations Represented by
Counsel

The committee has been asked whether it is a violation of the disciplinary
rules for an attorney to speak with the former employees of a corporate
opponent party. The committee is advised that the attorney wishes to question
these former employees regarding the subject matter of the pending litigation
since the former employees dealt closely with the transaction which gives rise
to the existing law suit against their prior corporate employer.
It is the opinion of this committee that an attorney representing an
opposing party in a law suit against a corporation may contact former
employees of the corporation, including former members of the corporation's
control group, who dealt with the subject matter of the litigation without
permission of corporate counsel. It should be noted that counsel may still be
prohibited from direct communication with a former employee if that person is
individually represented with regard to the pending matter. Further, the
questioning attorney may not inquire into privileged attorney-client
communications. The interrogating attorney may not listen while the former
employee tries to reveal privileged communications voluntarily. The existence
of any privileged matter among the former employee and the corporate
employer's counsel can only be waived by the corporation who possess this
privilege.
A lawyer may communicate with a former employee of an adverse party if
the former employee is not represented by counsel. If the lawyer must directly
communicate with an unrepresented person, the lawyer should not provide
advice, though he may suggest that the third party seek a lawyer. See,
Committee on Ethics of the Maryland State Bar Assoc., Opinion No. 86-13
(08/30/85), citing: DR7-104(A)(1); EC7-18. An important element of whether
the employee is equivalent to a "party," and thereby prohibiting inquiring
counsel from questioning without opposing counsel present, is whether the
employee has the power to commit the corporate employer. The scope of the
rule allows interviews with all employees concerning their knowledge of factual
matters outside the scope of their employment and interviews of former
employees since they are no longer part of the corporate entity. See,
Committee on Professional Ethics of the Assoc. of the Bar of the City of New
York, Opinion No. 80-46 (undated), citing: DR1-102(A)(2)(4), 7-104(A)(1), EC717, EC7-20, ABA Informal Opinion 1410.
Most authorities have restricted their scope of protection for corporate
parties to those managerial or other employees whose actions and statements
can bind or be imputed to the corporation. See, Alaska Bar Assoc. Ethics
Opinion No. 84-11 (11/09/84), citing: DR7-104(A)(1); Canon 9; ABA Rule 3.4(f)
and 4.2. This same reasoning would exclude former employees from the scope
of the rule's protection, even if those employees were formerly part of the
corporate control group. Direct communication with former "control"
employees does not deprive the corporation of legal counsel, since former
employees no longer can act or speak on behalf of the corporation. See, Illinois
State Bar Assoc. Cmte. on Professional Responsibility, Opinion No. 85-12
(04/04/86). The distinction between a mere bystander witness and a
managerial employee who is the later ego of the corporation rest on their
authority to commit the organization to a position concerning the scope of their
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employment. The difference between bystander and non-bystander witnesses
does not apply to an organization's former employees. After leaving the
organization's employment, a former employee cannot bind the organization
under the law. Therefore, an attorney does not violate DR7-104(A)(1) by
communication directly with the organization's former employees about the
substantive dispute without the prior consent of the organization's counsel.
See, Colorado Bar Assoc. Cmte., Opinion No. 69 Rev. (06/20/87).
In summary, direct communication with former control group or
managerial employees may result in eliciting information adverse to the
corporation. However, this no more deprives the corporation of the benefit of
counsel than does direct communication with any potential bystander witness.
Former officers or employees have no authority to commit the organization
since such prior employees can no longer be the alter ego of the corporation.
Adopted by the Alaska Bar Association Ethics Committee on May 18,
1988.
Approved by the Board of Governors on June 7, 1988.

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