Can a lawyer interview a former officer or trustee of the opposing organization without opposing counsel present?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A condominium unit owner sued the condominium trust over actions taken by the trustees. A former trustee, who had left before the litigation began and was not named in the suit, asked to be interviewed privately by the unit owner's lawyer about the disputed events, in which he had participated and which he had witnessed. The lawyer asked whether DR 7-104(A)(1), which bars communicating about the matter with a represented "party" without that party's counsel's consent, permitted the interview.
The committee held that the key question was whether the former trustee counts as a "party." Consistent with its Opinion 82-7 (which had concluded the no-contact rule reaches current corporate employees on matters within their employment but not former employees, because former employees have no present agency relationship served by corporate counsel), the committee treated the former trustee as a non-party. It acknowledged that, in the six years since 82-7, courts had split on ex parte contact with former agents, some (such as Amarin Plastics v. Maryland Cup) allowing it and others limiting it based on whether the former agent's acts could be imputed to the organization or whether the agent held a managerial role. The committee expressly disagreed with the imputed-liability rationale and reaffirmed that effective representation of opposing counsel is the touchstone of DR 7-104(A)(1). It reasoned that interviewing a non-party former trustee who merely witnessed or took part in relevant events does not impair the trust's access to effective counsel any more than interviewing any material witness; the only "diminishment" is the ordinary one of an opponent gaining early access to information. The committee saw no relevant difference between a trust with a former trustee and a corporation with a former officer.
The committee added one caveat about the trust's attorney-client privilege. Because the privilege belongs to the trust and cannot lawfully be waived by the former trustee, yet the former trustee might in fact disclose privileged matters with no trust counsel present to object, the interviewing lawyer is cautioned not to raise or ask about matters that might be privileged. The right to interview a party's former agent is not a license to interfere with the party's privilege.
Currency note
This opinion was issued in 1988, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer interview the opposing organization's former trustee or officer without opposing counsel present?
A: The committee concluded yes, because a former agent is not a "party" under DR 7-104(A)(1); the lawyer may interview that person as he would any material witness.
Q: Does it matter how involved the former agent was in the disputed events?
A: The committee said no. It rejected the imputed-liability approach some courts use and held that effective representation of opposing counsel is the touchstone, so even a former trustee who participated in the events may be interviewed.
Q: What limit applies to the interview?
A: The lawyer must not raise or ask about matters that might be covered by the organization's attorney-client privilege, because the privilege belongs to the organization and the former agent cannot waive it.
Background and rules framework
The opinion interpreted DR 7-104(A)(1), the Massachusetts no-contact rule barring communication with a represented "party," which corresponds today to Model Rule 4.2 (communication with a person represented by counsel). The privilege caveat reflects the duty now associated with Model Rule 4.4 (respect for the rights of third persons). The committee quoted the then-proposed Model Rule 4.2 in a footnote.
Citations and references
Rules of Professional Conduct:
- DR 7-104(A)(1) / Model Rule 4.2 (communication with a represented party)
- Model Rule 4.4 (respecting third parties' rights; the privilege caveat)
Cases:
- Amarin Plastics v. Maryland Cup, 116 F.R.D. 36 (D. Mass. 1987); Porter v. Arco Metals, 642 F. Supp. 1116 (D. Mont. 1986); Mompoint v. Lotus Development, 110 F.R.D. 414 (D. Mass. 1986); Chancellor v. Boeing Co., 678 F. Supp. 250 (D. Kan. 1988)
Other opinions cited:
- MBA Opinion 82-7 (no-contact rule reaches current but not former employees)
See also
Source
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