Can a plaintiff's lawyer interview a manager of the defendant organization without the consent of the organization's counsel?

Currency note

This opinion was issued in 1965, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 1 and 12, the predecessors to the current no-contact rule (current Rule 4.2; Model Rule 4.2). 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

A plaintiff sued a chamber of commerce for damages after a fall on its premises. The committee was asked whether the plaintiff's lawyer could interview the chamber's manager about the case without the permission of the chamber's counsel.

The opinion proceeded on the understanding that the chamber was not a "public officer, board, committee or body" within the exception in former Rule 12, which prohibited a State Bar member from communicating with a represented party about a subject of controversy without that party's counsel's consent. The committee also looked to former ABA Canons 9 and 13, which Rule 1 commended to California lawyers: Canon 9 barred communication with a represented party, while Canon 13 permitted interviewing any witness or prospective witness for the opposing side without opposing counsel's consent, so long as the lawyer avoided inducing the witness to deviate from the truth.

The committee reasoned that because a corporation can act only through individuals, former Rule 12 and former Canon 9 must reach certain employees or agents of a corporate adversary. While the committee acknowledged that identifying which employees fall within the rule is difficult, it concluded that this particular manager was "so closely identified with its management" that communicating with him was, in fact, communicating with an adverse party. Contact therefore required the consent of the chamber's counsel.

Common questions

Q: Could the plaintiff's lawyer interview the adverse chamber's manager without its counsel's consent?

A: No. The committee concluded that the manager was so closely identified with the chamber's management that communicating with him was communicating with the represented adverse party, which former Rule 12 prohibited without counsel's consent.

Q: Doesn't the rule allow interviewing the other side's witnesses?

A: Former Canon 13 permitted interviewing a witness or prospective witness for the opposing side without opposing counsel's consent, but the committee treated this manager not as a mere witness but as a person identified with the adverse party's management, so the no-contact rule controlled.

Q: Did the public-body exception apply to the chamber of commerce?

A: No. The opinion rested on the understanding that the chamber was not a "public officer, board, committee or body" within former Rule 12's exception, so the no-contact rule applied.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 12 (the no-contact rule barring communication with a represented party about a subject of controversy without counsel's consent, with an exception for public bodies) and former Rule 1 (which commended the ABA Canons of Ethics to California lawyers). It also discusses former ABA Canons 9 and 13. The no-contact principle is now embodied in California Rule 4.2 and Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Former California Rule 12 (communication with a represented party); former California Rule 1 (commending the ABA Canons)
• Former ABA Canons of Ethics 9 (communication with a represented party) and 13 (interviewing opposing witnesses)
• Current analog: Model Rule 4.2 / California Rule 4.2 (communication with a represented person)

Other authorities:

• Drinker, Henry S., Legal Ethics (1953) p. 201.

See also

• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
• ABA Formal Op. 07-445: Contact With Putative Class Members
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• CA Ethics Op. 1989-110: When Communication Is Not Prohibited

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1965-3.htm

Original opinion text

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

Ethics Opinions - FORMAL OPINION NO. 1965-3

Editor's Note: State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

May the attorney for a plaintiff properly interview the manager of defendant chamber of commerce without obtaining the consent of its counsel?

Rules 1 and 12 of the Rules of Professional Conduct of the State Bar.

This Committee is asked for its opinion on the following question:

Plaintiff brought suit against the chamber of commerce to recover damages arising as a result of a fall which occurred on the premises of the chamber. The question presented is whether plaintiff's counsel may properly interview the manager of the chamber about the case, without the permission and consent of counsel for the chamber.

Rule 12 of the Rules of Professional Conduct of the State Bar reads as follows:

"A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."

This opinion is predicated upon our understanding that the chamber of commerce in question is not a "public . . . board, committee or body" within the exception mentioned in rule 12 of the Rules of Professional Conduct.

The Canons of Ethics of the American Bar Association are not binding on members of the State Bar of California to the extent that violation thereof is grounds for disciplinary action by the State Bar. They are, nevertheless, "commended to the members of the State Bar." (Rule 1, Rules Prof. Conduct.)

[Former] canons 9 and 13 of the Canons of Ethics of the American Bar Association read as follows:

"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law."

"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."

It is inescapable that a corporation can be represented or act only through individuals. From this it follows that the foregoing rule 12 of the Rules of Professional Conduct and [former] canon 9 of the Canons of Ethics of the American Bar Association must prohibit all direct communication with certain employees or agents of a corporate adversary in the absence of consent by the latter's counsel. The question of who comes within the category of being such corporate employees or agents is a difficult one but, in the case presented, it is the opinion of this Committee that the manager of the Chamber of Commerce in question is so closely identified with its management that communication with him is, in fact, communication with an adverse party in violation of rule 12 of the Rules of Professional Conduct and contrary to [former] canon 9, unless consented to by counsel for the chamber.

For authority bearing on this point, see Drinker, Henry S., Legal Ethics (1953) p. 201.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.