May opposing counsel contact unrepresented former managers of a represented company without its lawyer’s consent?

Plain-English summary

Counsel for employment-discrimination plaintiffs wanted to speak with former managerial employees of a represented defendant organization. The opinion says Rule 4-4.2 does not bar contact without the organization lawyer’s consent if the lawyer does not know the former employees are represented.

Under Rule 4-4.3, the contacting lawyer must identify their role and ask whether the former employees have counsel. If one is represented, contact requires that individual’s counsel’s consent or authorization by law or court order.

The office does not decide other legal limits on former-employee contact. It cites the rule against obtaining evidence by methods that violate the organization’s legal rights.

In practice

The opinion distinguishes former organizational managers from currently protected constituents under Rule 4-4.2. It requires a representation check and role disclosure before the proposed contact proceeds.

Common questions

Q: Must the defendant company’s lawyer consent to contact with unrepresented former managers?

A: No, if the contacting lawyer does not know they are represented; the opinion cites Rule 4-4.2 Comment [7].

Q: What must counsel ask at the outset?

A: Rule 4-4.3 requires identifying counsel’s role and asking whether the former employees are represented.

Q: What if a former manager has individual counsel?

A: Contact then requires that counsel’s consent or authorization by law or court order.

Background and rules framework

Rule 4-4.2 and Comment [7] address contact with former organizational constituents. Rule 4-4.3 governs contact with unrepresented persons; the opinion also cites Rule 4-4.4(b) concerning legal rights in evidence gathering.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2 and Comment [7]
• Rules 4-4.3 and 4-4.4(b)

See also

• Missouri Informal Op. 2015-07: Agency Records Request
• Missouri Informal Op. 2020-10: Former Constituent Contact

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2013-01/

Original opinion text

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

Question: Attorney represents Plaintiffs in employment discrimination actions against a represented organization. Does Rule 4–4.2 prohibit Attorney from contacting unrepresented former managerial employees of Defendant without the consent of Defendant’s counsel?

Answer: Provided Attorney does not know that the former employees are represented by counsel, Rule 4–4.2 does not prohibit Attorney from communicating with Defendant’s former managerial employees about the subject of the representation without consent of Defendant’s counsel, as explained in Comment [7]. In accordance with Rule 4–4.3, Attorney must clearly identify Attorney’s role in the matter and ask whether the former managerial employees are represented by counsel. If any of the former managerial employees are represented by counsel, then Attorney must have that counsel’s consent or be authorized by law or court order to communicate with the former employees. This opinion does not address any limitations at law on Attorney’s contact with former employees, but Comment [7] to Rule 4–4.2 prohibits the use of methods of obtaining evidence that violate the legal rights of the organization as set forth in Rule 4–4.4(b).