In Kentucky, may a lawyer adverse to a represented organization interview an unrepresented former employee of that organization without the organization's counsel's consent?

Plain-English summary

The opinion addressed a question the Committee said was arising with increasing frequency: whether a lawyer adverse to a represented organization may contact the organization's former employees without notice to the organization's counsel. The Committee adopted the reasoning of ABA Formal Opinion 91-359 (1991), concluding that neither Rule 4.2 nor its Comments address former employees and that the rule does not bar ex parte contact with them.

The Committee reasoned that a former employee is no longer subject to the organization's control, no longer in a position to speak for the organization, and cannot make vicarious admissions under the state and federal evidence rules. It added two limits: a lawyer seeking information from a former employee should disclose the lawyer's identity and that the lawyer represents a party with a claim against the organization (Rule 4.3 and then-Comment 2 to Rule 4.2), and if the former employee is personally represented by counsel in the matter, that counsel may not be bypassed. The Committee noted that an organization that knows its former employees possess privileged information should use confidentiality agreements or seek protective orders.

Currency note

This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The opinion cites Comment 2 to Rule 4.2, which the bar notes was substantially amended and renumbered to Comment 7. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer interview a former employee of an adverse, represented organization without its counsel's consent?

A: Yes. The Committee concluded Rule 4.2 does not bar ex parte contact with a represented organization's former employees.

Q: Why didn't the no-contact rule reach former employees?

A: Per the opinion, a former employee is no longer controlled by, and cannot speak for or make vicarious admissions for, the organization, so the rule's protection did not extend to them.

Q: What did the lawyer have to do when making the contact?

A: The Committee stated the lawyer should disclose their identity and that they represent a party with a claim against the organization, and could not bypass any counsel personally representing the former employee.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a person represented by counsel; Model Rule 4.2) as applied to an organizational party, together with KRPC 4.3 (dealing with an unrepresented person; Model Rule 4.3). The analysis turns on the status of a former, as opposed to a current, employee.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / KRPC 4.2 (communication with a represented person; then-Comment 2)
• MR 4.3 / KRPC 4.3 (dealing with an unrepresented person)

Cases:

• Nalian Truck Lines v. Nakano Warehouse & Transp. Corp., 6 Cal. App. 4th 1256, 8 Cal. Rptr. 2d 467 (Cal. App. 1992), on protecting privileged information held by former employees

Other opinions cited:

• ABA Formal Op. 91-359 (1991): Rule 4.2 does not bar contact with an organization's former employees

See also

• KBA Ethics Op. E-382: Ex Parte Contact With an Adverse Organization's Current Employees
• KBA Ethics Op. E-393: Contacting an Insured Tortfeasor Over the Insurer's Objection

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-381.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-381
Issued: July 1995

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Comment 2 of Rule 4.2, which was substantially
amended and renumbered to Comment 7. Lawyers should consult the current version of
the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying
on this opinion.

Question:

May a lawyer representing a client in a matter adverse to an organizational party
that is represented by another lawyer, without violating Rule 4.2, communicate
about the subject matter of the representation with an unrepresented former
employee of the organizational party without the consent of or notification to the
organization’s lawyer?

Answer:

Yes.

References:

ABA Formal Op. 91-359(1991); Nalian Truck Lines v. Nakano Warehouse &
Transp. Corp., 6 Cal. App. 4th 1256, 8 Cal. Rptr. 2d 467 (Cal. App. 1992) review
denied by Supreme Court of California 1992 Cal. Lexis 4234 (1992); ALI/ABA
Civil Practice and Litigation in Federal and State Courts (6th ed. 1994), Vol. II,
G-1, 20-22 (collecting cases and law review articles); Underwood and Fortune,
Trial Ethics (Little Brown & Co., 1988), sec. 5.4.1.
OPINION

This question is coming up with increasing frequency. The Committee is of the opinion
that ABA Formal Op. 91-359 provides the correct answer. That opinion collects and reviews the
authorities and arguments, and we need not recite them at length. It is sufficient to state that
after recognizing that neither Rule 4.2 not the Comments thereto deal with former employees, the
Committee concluded that Rule 4.2 does not bar ex parte contacts with an organization’s former
employees. We note that a former employee is no longer subject to the control of the
organization nor in a position to speak for the organization, and cannot make vicarious
admissions under the state and federal evidence rules.
A lawyer seeking information from a former employee of an organizational party should
disclose the lawyer’s identity and the fact that the lawyer represents a party with a claim against
the organizational party. See Rule 4.3 and Comment (2) to Rule 4.2. It is incumbent on the
party who knows that its former employees posses privileged information to utilize
confidentiality agreements and/or seek protective orders. See e.g., Nalian Truck Lines at 472.
We also emphasize that if the former employee is personally represented by counsel in
that matter, then counsel may not be bypassed.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.