Can a lawyer interview a corporation's former employees in litigation without the consent of the corporation's counsel?
Apply this to your situation
This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
After Massachusetts adopted its Rules of Professional Conduct in 1998, the committee received numerous inquiries asking whether, in pending or contemplated litigation, a lawyer could interview a corporation's former employees without the consent of corporate counsel. The committee had been awaiting guidance from the Supreme Judicial Court, which had scheduled companion cases on current employees (Messing, Rudavsky & Weliky v. Harvard College) and former employees (Patriarca v. Center for Living and Working). The SJC decided Messing but the former-employee case was stayed, so the committee published this opinion drawing on the guidance Messing gave.
The committee reaffirms the view it first expressed in 1982 (Opinion 82-7) that the anti-contact principle does not reach former employees, who "enjoy no present agency relationship that is being served by representation of corporate counsel." It then works through the SJC's June 2002 revision of Comment 4, which after Messing limits the contact bar to current agents or employees who exercise managerial responsibility in the matter, are alleged to have committed the wrongful acts at issue, or have authority over the litigation. The committee acknowledges the revised Comment's "wrongful acts" category could be argued to capture some former employees, but stresses that Messing changed the operative language from "any other person whose act or omission . . . may be imputed to the organization" to "agents or employees," and "[f]ormer agents or employees are not 'agents or employees' of an organization."
The committee reads the shift as deliberate, since the former-employee issue had originally been set for argument alongside the current-employee issue, and it aligns its conclusion with ABA Formal Opinion 91-359, the ABA Ethics 2000 Commission's revised Comment 7 to Model Rule 4.2, and Restatement (Third) of the Law Governing Lawyers section 100. It notes the contrary result would be "bizarre," barring, for example, an employee who believed she was unjustly fired from speaking with litigation counsel without her former employer's lawyer's consent. The committee adds two limits: a former employee may choose to be represented by the former employer's lawyer (which, once known, triggers Rule 4.2), and a former employee so exposed to confidential information that contact should run through corporate counsel (citing Opinion 88-5).
In practice
Under this opinion, conduct that involves interviewing a corporation's former employees in litigation is generally permitted without corporate counsel's consent, because the committee concludes Rule 4.2's anti-contact bar reaches only current agents or employees in the categories the revised Comment 4 identifies. Per the opinion, the conclusion is "not absolute": it does not hold where the former employee is in fact represented by the former employer's counsel (once the interviewing lawyer learns this) or where the former employee was so exposed to privileged information that contact should be made through corporate counsel.
Common questions
Q: Can opposing counsel talk to a company's former employees without the company lawyer's consent?
A: Generally yes. The committee concludes that Rule 4.2's anti-contact prohibition does not, as a general rule, apply to former employees, because they are not current "agents or employees" of the organization under the revised Comment 4.
Q: Does it matter that the former employee may have done the acts the lawsuit is about?
A: The committee addresses this and concludes that, after Messing, the bar is keyed to current "agents or employees," so a former employee does not fall within the contact prohibition merely because liability might be predicated on their past conduct.
Q: Are there situations where the lawyer still must go through corporate counsel?
A: Yes. The committee notes two: if the former employee is actually represented by the former employer's lawyer (once that is communicated), and if the former employee was so exposed to confidential information that contact should be made only through corporate counsel.
Background and rules framework
The opinion interprets Mass. R. Prof. C. 4.2 (communication with a person represented by counsel) and its Comment 4 as revised by the Supreme Judicial Court in June 2002 to reflect Messing. Rule 4.2 corresponds to the Model Rule of the same number.
Citations and references
Rules of Professional Conduct:
- Model Rule 4.2 / Mass. R. Prof. C. 4.2 and Comment 4 (communication with represented persons; organizational employees)
Cases:
- Messing, Rudavsky & Weliky v. President and Fellows of Harvard College, 436 Mass. 347 (2002) (narrowing the organizational anti-contact bar)
- Patriarca v. Center for Living and Working, Inc., 2000 Mass. Super. LEXIS 241 (Super. Ct. 2000) (appeal stayed)
- Schwartz v. Camp Robin Hood, 2002 U.S. Dist. LEXIS 8342 (D. Mass. 2002)
- Intergen N.V. v. Grina, 2002 U.S. Dist. LEXIS 5512 (D. Mass. 2002)
Other opinions and authorities:
- ABA Formal Opinions 91-359 and 95-396 (Model Rule 4.2 does not cover former employees)
- Restatement (Third) of the Law Governing Lawyers section 100
- MBA Opinions 82-7 and 88-5
See also
- MA Bar Ethics Op. 02-4: Reach of Rule 4.2 in out-of-state litigation
- MA Bar Ethics Op. 05-01: Contacting a represented party only for counsel's contact information
Source
Get today's answer for your situation
You just read a 2002 opinion on this question. Ezel checks the current Massachusetts Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.