Could opposing counsel directly contact a represented employer’s hourly employees who witnessed alleged misconduct?

Plain-English summary

A lawyer wanted to question hourly employees of a represented employer who may have witnessed conversations behind a former employee’s defamation case. The employees were not managers and had not participated in the conversations or investigation.

The opinion permitted direct contact without violating Rule 4-4.2 on those facts. It warned that different or additional information could change the answer.

Currency note

This opinion was issued in 2001, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could counsel contact the employees directly?

A: Yes, under the specific facts presented.

Q: Was the conclusion unconditional?

A: No. The opinion said different or additional facts could change it.

Background and rules framework

The opinion applied Rule 4-4.2 to nonmanagerial employees of a represented organization.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2

See also

• Missouri Informal Op. 20030061: Child with GAL

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20010010/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Client brought a suit against a former employer. The Petition alleges that the former employer defamed Client in stating that Client committed “gross misconduct” in Client’s employment. Defendant asserts that the gross misconduct occurred in a couple of conversations. During these conversations, there were a couple of employees present who may have observed the conversations. These employees are not management personnel. These employees are still employed by Defendant. These employees were not part of the conversation and they did not complain to management about Client’s conduct. They were also not involved in the investigation that led to the termination of Client. Attorney would like to contact these employees and question them about what they witnessed regarding the conversations in question. Should the hourly employees be treated as the “party” for purposes of Rule 4–4.2?

ANSWER: Based upon the information Attorney has provided, it is permissible for Attorney to make direct contact with these employees, without violating Rule 4–4.2. Different or additional information could change this opinion.