Can a lawyer contact a former employee of a represented organization to get information without the organization's lawyer's consent?

Plain-English summary

The opinion addresses whether a lawyer may communicate with a former employee of an organization that is represented by counsel, to gather relevant information, without the organization counsel's consent. The Board concludes that the lawyer generally may, and replaces the earlier Formal Advisory Opinion 94-3.

The Board grounds the result in the text of Georgia Rule 4.2, the anti-contact rule, which prohibits a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by counsel in the matter. Comment 4A identifies which constituents of an organization fall within the rule: those who supervise, direct, or regularly consult with the organization's lawyer about the matter, who can bind the organization on the matter, or whose acts or omissions may be imputed to the organization. The Board reasons that the Comment nowhere brings former employees within Rule 4.2's protection, and concludes the rule does not apply to former employees. It adds that prohibiting such contact would give organization counsel a right of information control that no rule supports.

The Board then sets the conditions that do apply through Rule 4.3, which governs dealing with unrepresented persons. Before initiating contact, the lawyer must disclose the identity of the lawyer's client and the nature of that client's interest in relation to the former employer, and the reason for the communication and the essence of the information sought. The lawyer must then obtain the former employee's consent; if the former employee refuses, the lawyer must use formal discovery.

The Board adds two further limits. Under Rule 4.4, the lawyer must not use methods that violate the legal rights of the former employee or the organization, and in particular must not inquire into attorney-client privileged or otherwise privileged information. And if the lawyer knows or learns that the former employee is individually represented by counsel in the matter, Rule 4.2 applies and the lawyer must obtain that counsel's consent unless authorized by law or court order. The opinion notes the same disclosure approach is instructive even when the organization is not represented.

In practice

Under this opinion, conduct in which a Georgia lawyer contacts a former employee of a represented organization to obtain relevant information, without the organization counsel's consent, is permitted if the lawyer makes the required Rule 4.3 disclosures, obtains the former employee's consent, avoids privileged information, and confirms the former employee is not individually represented in the matter.

The opinion holds that Rule 4.2's anti-contact protection does not reach former employees, so the organization's counsel cannot block the contact; but it conditions the contact on the disclosures and the privilege limits above. Because the opinion replaces FAO 94-3, the earlier opinion no longer states the current Georgia position.

Common questions

Q: Can I contact a former employee of the opposing organization without its lawyer's permission?

A: Generally yes. The opinion concludes Rule 4.2 does not protect former employees, so opposing counsel's consent is not required, provided the lawyer makes the required disclosures and obtains the former employee's consent before the contact.

Q: What do I have to tell the former employee before the conversation?

A: Under Rule 4.3 as applied by the opinion, the lawyer must disclose the identity of the lawyer's client and the nature of that client's interest in relation to the former employer, and the reason for the communication and the essence of the information sought, and must then secure the former employee's consent.

Q: Can I ask the former employee about privileged communications?

A: No. The opinion holds that under Rule 4.4 the lawyer must not use methods that violate the rights of the former employee or the organization, and specifically must refrain from inquiring into attorney-client privileged or other privileged information.

Q: What if the former employee has their own lawyer?

A: If the lawyer knows or determines the former employee is individually represented in the matter, Rule 4.2 applies and the lawyer must obtain that counsel's consent before communicating, unless authorized by law or court order.

Background and rules framework

The opinion interprets Georgia Rule of Professional Conduct 4.2 (ABA Model Rule 4.2, the anti-contact rule), reading its Comment 4A to exclude former employees of an organization. It then applies Georgia Rule 4.3 (ABA Model Rule 4.3, dealing with unrepresented persons) to require disclosure and consent, and Georgia Rule 4.4 (ABA Model Rule 4.4, respect for the rights of third persons) to bar inquiry into privileged information. The opinion replaces Formal Advisory Opinion 94-3, so it carries a modified-status flag.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 4.2 (ABA Model Rule 4.2): communication with a represented person (the anti-contact rule), including Comment 4A on organizational constituents
• Georgia RPC 4.3 (ABA Model Rule 4.3): dealing with an unrepresented person
• Georgia RPC 4.4 (ABA Model Rule 4.4): respect for rights of third persons

Other opinions cited:

• Formal Advisory Opinion 94-3 (replaced by this opinion)

See also

• ABA Formal Op. 91-359: Contact With Former Employee of Adverse Corporate Party
• ABA Formal Op. 06-443: Contact With Organization's Inside Counsel
• ABA Formal Op. 95-396: Communications With Represented Persons

Source

• Landing page: https://www.gabar.org/handbook?rule=rule610

Original opinion text

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

FORMAL ADVISORY OPINION NO. 20-1
Approved On May 3, 2022 Pursuant to Bar Rule 4-403
By Order of the Supreme Court of Georgia Thereby Replacing FAO No. 94-3
Supreme Court Docket No. S21U0879

QUESTION PRESENTED :
Whether a lawyer may properly communicate with a former employee of a represented organization to acquire relevant information, without obtaining the consent of the organization’s counsel.

SUMMARY ANSWER :
Generally, a lawyer may communicate with a former employee of an organization that is represented by counsel without obtaining that counsel’s consent, provided that the lawyer fully discloses to the former employee, before initiating the communication, the following information: (1) the identity of the lawyer’s client and the nature of that client’s interest in relation to the organization (i.e., the former employer); and (2) the reason for the communication and the essence of the information sought. After making these disclosures, the lawyer must also obtain the former employee’s consent to the communication.

Furthermore, in communicating with the former employee, the lawyer must not utilize methods of obtaining information that would violate the legal rights of the former employee or the represented organization, such as inquiring into information that may be protected by the attorney-client privilege or other evidentiary privilege.

Finally, if the lawyer knows or at any point determines that the former employee is individually represented by counsel in the matter, the lawyer may not communicate with the former employee, unless authorized by law or court order to do so, without obtaining the former employee’s counsel’s consent.

OPINION :
The question presented relates to the propriety of a lawyer seeking to obtain information from a former employee of an organization that is represented by counsel. Counsel for an organizational client undoubtedly would prefer that an adverse lawyer not be permitted to communicate with former employees of the organization for the purpose of obtaining information that could be used against the organization. However, prohibiting such communications by a lawyer, without the consent of the organization's counsel, would give that counsel a right of information control that is not supported by any rule of professional conduct.

Georgia Rule of Professional Conduct 4.2, commonly known as the anti-contact rule, only addresses a lawyer’s ability to communicate about the subject matter of a representation with a person who is represented by counsel in the matter. Specifically, Rule 4.2(a) provides:

A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person 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 to do so by law or court order.

Rule 4.2 prohibits communication with some but not all of the constituents of the organization. Comment 4A to Rule 4.2 explains which constituents fall within the rule’s anti-contact protections—

In the case of an organization, this Rule prohibits communications with an agent or employee of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

The Comment does not anywhere suggest that a former employee comes within Rule 4.2’s protections. The only reasonable conclusion to draw from this omission is that Rule 4.2 does not apply to former employees.

That, however, does not fully address a lawyer’s ethical obligations in this context. While a lawyer may communicate with a former employee [1] of an organization without first obtaining the consent of that organization’s counsel, the lawyer must comply with Rule 4.3 and make it clear that he or she is not disinterested and explain the nature of and reasons for the communication with the former employee. In particular, the lawyer must fully disclose to the former employee, before initiating the communication, the following information: (1) the identity of the lawyer’s client and the nature of that client’s interest in relation to the organization (i.e., the former employer); and (2) the reason for the communication and the essence of the information sought. After the required disclosures are made, the lawyer must secure the former employee’s consent to the communication. If the former employee refuses to consent, the lawyer must proceed through the formal discovery process in order to obtain the desired information.

The lawyer must also exercise caution in communicating with the former employee and avoid utilizing methods of obtaining information that would violate the legal rights of the former employee or the represented organization. [2] In particular, the lawyer must refrain from inquiring into information that may be protected by the attorney-client privilege or some other evidentiary privilege. [3] Along the same lines, before initiating the communication, the lawyer should ensure that the former employee is not personally represented by counsel in the matter. If the lawyer knows or determines that the former employee is individually represented by counsel, the lawyer must comply with Rule 4.2 and obtain the consent of the former employee’s counsel, unless the lawyer is otherwise authorized by law or court order to make the communication.

Finally, while this opinion focuses on a lawyer communicating with a former employee of an organization that is represented by counsel, the guidance it provides is also instructive for navigating the same situation when the organization is not represented by counsel. A former employee under such circumstances likewise has a right to know the identity of the lawyer’s client and the nature of and reasons for the lawyer’s communication. Therefore, even when the organization is not represented by counsel, a lawyer should make full disclosure to the former employee as set forth in this opinion and obtain the former employee’s consent before engaging in any other communication.

1 Rule 4.3 addresses a lawyer’s duties in dealing with an unrepresented person:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
a. state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; and
b. give advice other than the advice to secure counsel, if a lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of a client

GEORGIA RULES OF PROF’L CONDUCT, R. 4.3 (2020) [hereinafter “GEORGIA RULES”].

2 See GEORGIA RULES, R. 4.4(a).

3 See GEORGIA RULES, R. 4.4(a), cmt. [1] (“Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships .”) (emphasis added).