In Kentucky, which current employees of a represented organization may an adverse lawyer interview without the organization's counsel's consent?

Plain-English summary

The opinion answered three questions from a lawyer who had sued or planned to sue a represented organization and wanted to interview its current employees. The Committee treated the first two as uncontroversial: the lawyer may not, without consent, interview a managerial employee (Question 1, No), and may interview a non-managerial employee whose conduct did not give rise to the claim and whose statements fall outside the scope of employment (Question 2, Yes).

The harder question was Question 3, addressed in detail. The Committee concluded that Rule 4.2 gives the organization more protection than the old Code did, in light of the expanded hearsay exception for vicarious admissions (FRE 801(d)(2)(D); KRE 801A(d)(2)(D)). Reading then-Comment 2, the Committee identified three "off limits" categories of current employees: those with managerial responsibility, those whose act or omission in the matter may be imputed to the organization, and those whose statement may constitute an admission. Using an illustration involving an Acme loading-dock accident, the Committee explained that the president (managerial), the loader whose act is imputed, and a co-worker who will be asked about matters within his employment (an evidentiary admission under KRE 801A) are all off limits without consent, while a secretary on a smoke break who will not be asked about matters within her employment may be interviewed. The Committee noted it did not address Rule 4.2 in criminal cases.

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 relies on 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 Treat this page as historical context, not current guidance.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 managerial employee of an adverse, represented organization?

A: No. The Committee concluded a current managerial employee is off limits under Rule 4.2 without the organization counsel's consent.

Q: Which current employees could the lawyer interview without consent?

A: Per the opinion, a non-managerial employee whose conduct did not give rise to the claim and who will not be asked about matters within the scope of employment, so that no statement would be an admission imputed to the organization.

Q: What test decided whether a non-managerial employee was off limits?

A: The Committee asked whether the employee's act or omission may be imputed to the organization or whether the employee's statement, on matters within the scope of employment, may constitute an admission under the evidence rules.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a person represented by counsel; Model Rule 4.2) as applied to current employees of an organizational party, reading then-Comment 2 against the vicarious-admission hearsay exception in FRE 801(d)(2)(D) and KRE 801A(d)(2)(D).

Citations and references

Rules of Professional Conduct:

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

Cases:

• Shoney's Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994), which did not reach Question 3

Other opinions cited:

• KBA E-213 (1979); ABA Formal Op. 91-359 (1991); Mass. Op. 82-7; NYC Op. 80-46; Ohio Op. 90-20; Oregon Op. RI-120; San Diego Op. 1984-5; Wisconsin Op. E-91-1

See also

• KBA Ethics Op. E-381: Ex Parte Contact With an Adverse Organization's Former 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-382.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-382
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.

A lawyer who has filed a civil* lawsuit against an organization or who plans to file such an action asks the following questions: Question 1:

May the lawyer, knowing that the organization is represented by counsel in that matter, interview an employee who has a management position in the organization without the consent of the organization’s counsel?

Answer:

No.

References:

Rule 4.2 and Comment (2); Shoney’s Inc. v. Lewis and Herr, 875 S.W.2d 514 (1994), 1994 WL 23608 (Ky. 1994); KBA E-213 (1979).

Question 2:

May the lawyer interview a non-managerial employee whose acts or omissions in connection with the matter cannot be imputed to the organization for purposes of civil liability or who statement will not constitute and admission on the part of the organization - that is, an employee whose conduct did not give rise to the claim against the organization and who statements do not relate to the scope of the employee witness’s employment, without notifying the organization’s counsel?

Answer:

Yes.

References:

Rule 4.2 and Comment (2); KBA E-213 (1979); Mass. Op. 82-7 (1982); NYC Op. 80-46 (n.d.); Ohio Op. 90-20 (1990); Oregon Op. 1991-80 (1991); Wisconsin Op. E-91-1.

Question 3:

May the lawyer, knowing that the organization is represented by counsel in that matter, interview a non-managerial employee regarding matters within the scope of that employee’s employment, whose act or omission in connection with that matter may be imputed to the organization, or whose statement may constitute an admission on the part of the organization, without the consent of the organization’s counsel.

Answer:

No.

References:

Rule 4.2 and Comment (2); Mass Op. 82-7; NYC Op. 80-46 (n.d.); Ohio Op. 90-20 (1990); Oregon Op. RI-120 (1992); San Diego Op. 1984-5 (1984); Wisconsin Op. E-91-1 (1991). See also ABA Formal Op. 91-359 (1991).

OPINION
The Committee has concluded that the first two questions and answers are not controversial and that further discussion of the answers is not necessary. Question 3 presents some difficulties in the interpretation of Rule 4.2. Shoney’s did not reach this question. KBA E-213 (1979), applying the old Code of Professional Responsibility, employed a managerial/nonmanagerial distinction; and so long as the employee’s conduct did not give rise to the litigation there seems to be little question that such interviews were permitted prior to the adoption of Rule 4.2. However, Rule 4.2 grants the organizational party more protection in light of the expansion of the hearsay exception for vicarious admissions. See Federal Rules of Evidence 801(d)(2)(D) and Kentucky Rules of Evidence 801(A)(2)(D). See also Underwood & Fortune, Trial Ethics (Little Brown & Co., 1988), sec. 5.4.1. Comment (2) states that there are three categories of present employees who are “off limits”: (1) Persons having managerial responsibility on behalf of the organization: (2) [A]nd any other person, (a)

whose act or omission in connection with that matter may be imputed to the organization, or

(b)

who statement may constitute an admission on the part of the organization.

While the Comments are interpretive and not binding, the intent of the drafters seems clear. See opinions from other jurisdictions cited above. In this instance the Comments should not be ignored. To illustrate, assume that the Acme Storage Company has four employees: Al the president, Bob a loader, Carl a loader and Diana a secretary. One day there is an accident on the loading dock in which Pete, who was delivering goods, was injured by the alleged negligence of Bob. Carl was working on the dock and observed the accident. Diana was taking a break on the loading dock to have a smoke and also observed the accident. Pete’s lawyer notifies Acme of his intent to sue Acme for the negligence of Bob and Acme’s lawyer notifies Pete’s lawyer that none of the Acme employees are to be interviewed without his consent. Pete’s lawyer: 1)

may not interview Al without consent because Al has managerial responsibility;

2)

may not interview Bob without consent because his act (driving the truck) may be imputed to Acme;

3)

may not interview Carl without consent because it is contemplated that he will be asked about matters within the scope of his employment (the operation of the loading dock) and

any statement he makes in that regard will be an evidentiary admission of Acme under KRE 801A(d)(2)(D); 4)

may interview Diana without consent because it is not contemplated that Diana will be asked any questions about matters within the scope of her employment.

------------------------------------------------------------------------------------------------* The Committee does not address the application of Rule 4.2 in criminal cases.
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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.