When an organization is represented by counsel, which of its current and former employees may opposing counsel contact without permission?

Plain-English summary

A lawyer representing a client adverse to a nursing home wants to take statements from the home's current and former staff, knowing the home is represented by counsel in the matter but not knowing whether that counsel also represents any of the individuals. The question is when Rule 4.2, the anti-contact rule, bars contacting the constituents of a represented organization without the organization's counsel's consent.

The Committee adopts the three-part test from Comment [7] to ABA Model Rule 4.2 and expressly rejects the older "control-group" test of Fair Automotive Repair, Inc. v. Car-X Service System, Inc., 128 Ill. App. 3d 763 (1984). Under the adopted test, Rule 4.2 bars contact only with current constituents who (i) supervise, direct, or regularly consult with the organization's lawyer about the matter; (ii) have authority to obligate the organization on the matter; or (iii) whose act or omission in the matter may be imputed to the organization for civil or criminal liability. The opinion reasons that the anti-contact rule serves different purposes from the attorney-client privilege (preventing careless statements, protecting the lawyer-client relationship, guarding against inadvertent disclosure, and channeling disputes through counsel), so its scope should not be limited to the privilege's control group. Constituents outside the three categories who lack their own counsel are treated as unrepresented persons under Rule 4.3.

On former constituents, the opinion concludes the anti-contact rule does not limit contact at all, consistent with its prior view in ISBA Op. 85-12 and with Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996), because former employees cannot bind the organization and have less access to its privileged information. This Opinion supersedes and modifies ISBA Op. 85-12 only as to the test for current constituents; it leaves 85-12's former-constituent conclusion intact. In all cases the lawyer may not use the contact to invade the organization's privileges (Rule 4.4), and must obtain consent from any personal counsel before contacting a constituent who has separate representation.

Currency note

This opinion was issued in 2009, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The opinion was affirmed by the ISBA Board of Governors in January 2010 by reference to 2010 Rule 4.2 and Comment [7], which incorporates the three-part test the opinion adopts. Verify against current rules and comments before relying on the specific test as stated here.

In practice

Under the Illinois rules, the opinion holds that opposing counsel may interview most rank-and-file current employees of a represented organization, and any former employee, without the organization's counsel's consent, so long as the current employee is not a decision-maker on the matter, cannot bind the organization, and has no conduct imputable to it. The opinion treats unprotected, unrepresented constituents as subject to Rule 4.3, bars using the contact to obtain the organization's privileged information under Rule 4.4, and requires consent of any personal counsel a constituent has retained.

Common questions

Q: Can I interview a represented company's current employees without its lawyer's permission?

A: Yes, for most of them. The opinion concludes Rule 4.2 bars contact only with current employees who direct the matter with counsel, can bind the company, or whose conduct may be imputed to it for liability.

Q: Does Illinois still use the control-group test for Rule 4.2?

A: No. The opinion expressly rejects the control-group test of Fair Automotive and adopts the three-part test from Comment [7] to Model Rule 4.2.

Q: Can I contact former employees of the represented organization?

A: Yes. The opinion concludes the anti-contact rule does not limit communications with former constituents, though the lawyer still may not invade the organization's privileges.

Q: What if the employee has his own lawyer?

A: The opinion concludes that consent of that personal counsel (or other legal authorization) is required before contacting a constituent who is personally represented.

Background and rules framework

The opinion interprets Illinois Rule 4.2 (communication with a represented person), Rule 1.13 (organization as client, supplying the definition of "constituent"), Rule 4.3 (dealing with unrepresented persons), and Rule 4.4 (respect for the rights of third persons). The corresponding Model Rules are MR 4.2, MR 1.13, MR 4.3, and MR 4.4. It adopts the analysis of ABA Model Rule 4.2 Comment [7] and several Northern District of Illinois decisions.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons) / IL Rule 4.2
• MR 1.13 (organization as client) / IL Rule 1.13
• MR 4.4 (respect for rights of third persons) / IL Rule 4.4

Cases:

• Fair Automotive Repair, Inc. v. Car-X Service System, Inc., 128 Ill. App. 3d 763, 471 N.E.2d 554 (2d Dist. 1984), the rejected control-group test
• Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996), former employees are not covered by the anti-contact rule
• Hill v. Shell Oil Co., 209 F. Supp. 2d 876 (N.D. Ill. 2002); Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001)

Other opinions cited:

• ISBA Op. 85-12 (superseded/modified as to current constituents; former-constituent conclusion retained)

See also

• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
• ABA Formal Op. 07-445: Contact With Putative Class Members

Source

• Landing page: https://www.isba.org/ethics/opinions/0901