Can a lawyer interview an opposing company's former employees without the company's lawyer's consent, and what limits apply?

Plain-English summary

Opinion 287 (adopted October 1998) addressed a lawyer suing a corporation who asked whether he could contact the company's former employees without the company's lawyer's consent. The committee explained that D.C.'s Rule 4.2 is distinctive: unlike the Model Rule, it expressly permits, in Rule 4.2(b), communication with a "nonparty employee" of an opposing organization without opposing counsel's consent, and in Rule 4.2(c) defines "party" to include only employees with authority to bind the organization as to the representation. So even for current employees, the no-contact bar reaches only those who can bind the organization in the matter.

Applying that framework to former employees, the committee concluded Rule 4.2 does not bar ex parte contact with them, regardless of the position they once held, because former employees generally cannot bind the organization by decision, conduct, or admission with respect to a pending or prospective matter. That a former employee may possess damaging information or have created liability does not change this; consistent with the majority of courts and ABA Formal Opinion 91-359, and with the rule's purpose of protecting the lawyer-client relationship rather than restricting access to non-privileged facts, the contact is permitted.

The committee imposed safeguards. Before any substantive communication, the lawyer must disclose his identity and that he represents a party with a claim against the former employer (Rule 4.2(b), reinforced by Rule 4.3's duty to avoid misunderstanding by an unrepresented person). And under Rule 4.4 (respect for third parties' rights), the lawyer may not solicit information the lawyer knows or should know is protected by an established privilege; using clearly privileged information a former employee was not authorized to reveal may also violate Rule 8.4(c). The committee cautioned that some former employees remain involved in the matter or are represented by their own counsel, in which case the usual no-contact rule applies.

Currency note

This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Could the lawyer contact the opponent's former employees without consent?

A: The opinion concluded yes. Rule 4.2 does not bar ex parte contact with an opposing party's unrepresented former employees, whatever their former position, because they generally cannot bind the organization in the matter.

Q: What must the lawyer disclose before talking with a former employee?

A: The opinion held the lawyer must, before any substantive communication, disclose his identity and that he represents a party with a claim against the former employer, and under Rule 4.3 take steps to avoid the former employee misunderstanding the lawyer's role.

Q: Are there limits on what the lawyer can ask?

A: The opinion concluded yes. Under Rule 4.4 the lawyer may not solicit information the lawyer knows or should know is protected by an established privilege, and using clearly privileged information may also violate Rule 8.4(c).

Q: Does the rule reach current employees too?

A: The opinion explained that under D.C.'s Rule 4.2(b) and (c), only current employees with authority to bind the organization as to the representation are off-limits; other nonparty employees may be contacted after the required disclosures.

Background and rules framework

The opinion interpreted D.C. Rule 4.2 (communication with represented persons), emphasizing the District's distinctive Rule 4.2(b)-(c) and Comment [3] limiting the bar to those who can bind the organization. It applied Rule 4.3 (dealing with an unrepresented person) to the required disclosures and Rule 4.4 (respect for third parties' rights) to the limit on soliciting privileged information, noting Rule 8.4(c) where privileged material is used.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 4.2(b), (c) / Model Rule 4.2 (communication with an organization's employees; D.C.'s "authority to bind" test)
• D.C. RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)
• D.C. RPC 4.4 / Model Rule 4.4 (respect for the rights of third parties)

Cases:

• H.B.A. Management v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997) (ex parte contact with former employees permitted)
• Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D. Md. 1997) (disqualification for contact with a former GC holding privileged information)

Other opinions cited:

• D.C. Ethics Opinions 80, 129, 256
• ABA Formal Op. 91-359 (1991); ABA Formal Op. 95-396 (1995); ABA Formal Op. 97-408 (1997)

See also

• ABA Formal Op. 91-359: Contacting Former Employees
• DC Ethics Op. 331: Contacting In-House Counsel
• ABA Formal Op. 06-443: Contacting Inside Counsel

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-287