In Kentucky, may a corporation's lawyer contact a represented employee who is suing the corporation, without the employee's lawyer's consent?

Plain-English summary

The opinion responded to lawyers who asked whether corporate counsel may contact represented employees who have cases against their corporate employers. The Committee answered No, stating the opinion was intended to affirm the obvious: KRPC 4.2 applies to all lawyers. It pointed to its recent opinions on plaintiff's counsel contacting current and former employees of a corporate defendant (KBA E-381 and E-382), and concluded nothing in Rule 4.2 exempts corporate counsel from its restrictions.

The Committee added that application of Rule 4.2 is fact sensitive: the rule applies to a lawyer acting in the course of representing a client, and a lawyer with independent justification for communicating with the other party is permitted to do so (then-Comment 1). A corporate lawyer in doubt may request an advisory opinion. The Committee also used the occasion to note the limits of its role: it tries not to issue advisory opinions for "offensive" purposes to be used against alleged malefactors, but gives advisory opinions to requesting lawyers about their own future conduct (KBA E-297), a self-imposed restraint consistent with SCR 3.530.

Currency note

This opinion was issued in 1996 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 refers to Comment 1 of Rule 4.2, which the bar notes was revised and renumbered to Comment 4. Treat this page as historical context, not current guidance.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 corporation's lawyer contact an employee who is suing the corporation and is represented by counsel?

A: No. The Committee concluded Rule 4.2 applies to corporate counsel, so they may not contact the represented employee without that lawyer's consent.

Q: Did Rule 4.2 treat corporate counsel differently from plaintiff's counsel?

A: Per the opinion, no. Nothing in Rule 4.2 exempts corporate counsel, just as it restricts plaintiff's counsel contacting a corporate defendant's employees (KBA E-381 and E-382).

Q: Was there any room for contact under the rule?

A: The Committee noted Rule 4.2 is fact sensitive and that a lawyer with independent justification for the communication is permitted to make it; a lawyer in doubt may request an advisory opinion.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a person represented by counsel; Model Rule 4.2), confirming the rule binds corporate counsel and reading its then-Comment 1 on a lawyer with independent justification to communicate. The analysis turns on the rule's application to all lawyers and its fact-sensitive scope.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / KRPC 4.2 (communication with a represented person; then-Comment 1)

Other opinions cited:

• KBA E-381 and KBA E-382 (1995): contacting a corporate party's former and current employees
• KBA E-297 (1984): the Committee gives advisory opinions on a requesting lawyer's own future conduct

See also

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

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-392.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-392
Issued: September 1996

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 1 of Rule 4.2 which was revised and
renumbered to Comment 4. 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 counsel for a corporation communicate with a corporate employee about the
subject matter of a case brought by the employee against the corporation, if the
corporate counsel knows that the employee is represented by another lawyer in
the matter and does not have the consent of that lawyer to contact the represented
employee?

Answer:

No.

References:

KRPC 4.2
OPINION

Several lawyers have contacted the committee regarding the propriety of corporate
counsel contacting represented employees who have cases against their corporate employers.
This opinion is intended to affirm the obvious, that KRPC 4.2 applies to all lawyers. On the
other hand, we take the opportunity to comment on the limits of the committee’s role.
We recently issued opinions on the propriety of plaintiff’s counsel contacting present and
former employees of a corporate defendant. See KBA Es - 382 and 381. Nothing in the
language of KRPC 4.2 suggests that corporate counsel are exempt from the restrictions of KRPC
4.2.
Of course, we note that the application of KRPC 4.2 is fact sensitive. The rule applies to
a lawyer acting in the course of representing a client. See comment (1) to KRPC 4.2 (“a lawyer
having independent justification for communicating with the other party is permitted to do so”).
If the lawyer representing the corporation is in doubt about the propriety of his or her conduct,
then that lawyer may request an advisory opinion.
We again advise the membership that the committee tries not to issue advisory opinions
for “offensive” purposes - to be used against alleged malefactors. Our role is to give advisory
opinions to requesting lawyers regarding their own future conduct. See KBA E-297 (1984).
This rule of restraint is arguably self-imposed, but it is consistent with the language of SCR
3.530.

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.