When did Arizona Opinion 95-07 permit a lawyer to interview an opposing party's current or former employees without its counsel?

Plain-English summary

The inquiry concerned private witness interviews in civil litigation without the opposing employer's counsel's consent. For current employees, the committee applied ER 4.2 to managers and to employees whose acts could be imputed to the employer or whose statements could be admissions. A nonmanagerial employee outside those groups was not barred merely because the testimony might harm the employer, the employee witnessed an unlawful act, or the employee had a situation similar to the plaintiff's.

For former employees, the committee followed Lang: contact without the employer's counsel's consent was generally permitted unless the former employee's acts or omissions gave rise to the litigation or the employee had an ongoing relationship with the employer concerning it. Separate representation of an employee required consent from that employee's counsel.

The opinion confined its answers to nongovernmental employees in potential or pending civil litigation and assumed informal interviews rather than contacts authorized by subpoena. It said A.R.S. § 12-2234's broader organizational privilege did not itself make every employee personally represented for ER 4.2 purposes, while declining to interpret that statute.

Currency note

This opinion was issued in 1995, before the State Bar of Arizona's adoption of the 2003 revisions to the 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did damaging testimony alone bar contact with a current employee?

A: No. The employee's managerial role, imputable acts or omissions, possible admission, and separate representation controlled the ER 4.2 analysis.

Q: Could counsel interview a former employee without the employer's lawyer?

A: Generally yes, except where the former employee's acts gave rise to the case or the employee retained an ongoing relationship with the employer concerning the litigation.

Q: Did observing employer misconduct or having a claim like the plaintiff's change the answer?

A: The committee said neither fact alone changed the ER 4.2 analysis for current or former employees.

Background and rules framework

The opinion applied Arizona ER 4.2 and its organizational comment to employee contacts. It relied on Lang v. Superior Court for former employees and noted that separate counsel for an employee could give the consent required by the rule.

Citations and references

Rules of Professional Conduct:

• AZ ER 4.2: communication with represented persons

Statutes:

• A.R.S. § 12-2234: organizational attorney-client privilege discussed in a footnote

Cases:

• Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992): former-employee contact limits

Other opinions cited:

• Arizona Opinion 87-25: prior employee-contact opinion
• Arizona Opinion 89-05: prior employee-contact opinion
• ABA Formal Opinion 95-396: represented-person communications

See also

• AZ Ethics Op. 00-05: Former Employee Interview

Source

• Landing page: https://www.azbar.org/for-legal-professionals/ethics/ethics-opinions/?V=Opinions&OpinionId=459
• Official opinion API: https://api.azbar.org/EthicsRules/Opinion/?Id=459

Original opinion text

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

FACTS[1]

An attorney desires to interview witnesses who are (1) current and (2) former employees of an opposing party in litigation under the following circumstances:

(a) where the testimony may be detrimental to the employer;

(b) where the employee may have witnessed an unlawful act of the employer or its

agent; and

(c)  where the employee's situation is similar to that described by the plaintiff.

RELEVANT ETHICAL RULES

ER 4.2  Communication with Person Represented by Counsel

         In representing a client, a lawyer shall not communicate about the subject 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.

RELEVANT PRIOR ETHICS OPINIONS

Op. 87-25 (December 30, 1987)

Op. 89-05 (May 17, 1989)

ABA Op. 95-396 (July 28, 1995)

OPINION

This opinion will address in turn communications with a witness who is first a current employee, and then a witness who is a former employee, of an adverse party represented by counsel, with respect to each of the three enumerated circumstances, in the absence of consent by the adverse party employer's counsel.

ER 4.2 permits communications with consent or when "authorized by law to do so".  A properly issued subpoena and notice of deposition presumably constitutes authorization by law.  This opinion assumes that the "interviews" sought to be conducted will not be pursuant to any lawfully issued subpoenas.  This opinion is limited to the question of communications with non-governmental employees and former employees, and with respect to matters that are the subject of potential or pending civil litigation.  Communications with respect to pending or potential criminal or civil enforcement by a government authority are beyond the scope of this opinion.

The American Bar Association Committee on Ethics and Professional Responsibility issued Formal Opinion 95-396, Communications With Represented Persons, on July 28, 1995.  Although Opinion 95-396 does not bear directly on the questions presented to this Committee and addressed in this Opinion, it is consistent with this Opinion (except to the extent that the Arizona Court of Appeals limited communications with former employees in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992), see infra. at p. 4) and the ABA Opinion provides an otherwise comprehensive analysis of the rule; the reader therefore is referred to it for general guidance.

I.  Current Employee

     A.  Witness's testimony may be detrimental to the employer

That the testimony of the employee may be detrimental to her employer is not determinative.  The Comment to ER 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.[2]

If the employee does have managerial responsibility with the employer, ER 4.2 prohibits communication by a lawyer for the party adverse to the employer with such employee without the employer's lawyer's consent.  On the other hand, such communication with a non-managerial employee is not so proscribed, unless an act or omission of the non-managerial employee may be imputed to the employer for purposes of civil or criminal liability, or the statement of such non-managerial employee may constitute an admission on the part of the employer.

The Comment to ER 4.2 goes on to state:

            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.

Thus, counsel for a party wishing to communicate with a non-managerial employee of an adverse party should ascertain from the employee (or beforehand if possible) whether or not she is represented in connection with the matter that is the subject of the proposed communication, and if so, obtain the consent of the employee's counsel.  Often, the employer has offered to provide the employee with her own counsel, who may have been engaged at the time of the communication by counsel for the party adverse to the employer, or the employer's own counsel also represents the employee.

     B.  Employee may have witnessed an unlawful act by the employer

That the employee may have witnessed an unlawful act of his employer or representative is not relevant to whether communication by counsel for a party adverse to the employer is permitted under ER 4.2.  Whether or not such communication is permissible under ER 4.2 is governed by the commentary to the rule as set out in section I.A. above.

     C.  Employee's situation is similar to that described by the plaintiff 

That employee may be in a situation similar to that described by the plaintiff in the lawsuit also is not relevant to whether or not communication by counsel for a party adverse to the employer is permitted under ER 4.2.  Whether or not such communication is permissible under ER 4.2 is governed by the commentary to the rule as set out in section I.A. above.

II.  Former Employee

     A.  Witness's testimony may be detrimental to the employer

That the testimony of the former employee may be detrimental to her former employer is not determinative.  The Arizona Court of Appeals held in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992) that communication with a former employee by counsel for a party adverse to the former employer is permissible in the absence of consent by counsel for the employer, unless the acts or omissions of the former employee gave rise to the underlying litigation.  In the language of the Comment to ER 4.2, communication is prohibited if "an act or omission [of the former employee] . . . may be imputed to the organization for purposes of civil or criminal liability . . . ."  The court also held in Lang that communication was prohibited without the consent of the former employer's counsel if the former employee has some ongoing relationship with the employer in connection with the litigation.

     B.  Employee may have witnessed an unlawful act of his former employer

That the former employee may have witnessed an unlawful act by his former employer or representative is not relevant to whether communication by counsel for a party adverse to the former employer is permitted under ER 4.2.  Whether or not communication with a former employee is permitted under such circumstances is governed by the same analysis set out in section II.A. above.

     C.  Employee's situation is similar to that described by the plaintiff

That the former employee's situation may be similar to that described by the plaintiff is not relevant to whether or not communication by counsel for a party adverse to the former employer is permitted under ER 4.2.  Whether or not communication with a former employee is permitted under such circumstances is governed by the same analysis set out in section II.A. above.