May a Missouri lawyer interview a represented association's former member and director without organizational counsel's consent?

Plain-English summary

A lawyer wanted to question a former member and director of a represented association about a defamation claim. The witness left the board before the alleged statements and later ceased being an association member.

Rule 4-4.2 Comment [7] does not place a former organizational constituent in a category automatically protected from contact by organizational counsel. If the lawyer actually knows the witness is represented in this matter, however, Rule 4-4.2 bars contact without counsel's consent, legal authorization, or a court order.

The opinion does not decide whether association counsel and the witness have a lawyer-client relationship, treating that as a factual and legal question. Any interview must avoid violating the organization's legal rights, including unwarranted intrusion into privilege. If the witness is known to be unrepresented, Rule 4-4.3 applies.

In practice

Under this opinion, former-constituent status and individual representation are separate questions. The first does not prohibit contact; actual knowledge of the second does.

Common questions

Q: Does former membership alone place the witness within Rule 4-4.2's organizational-contact ban?

A: No. Comment [7] excludes former constituents from that category.

Q: What if association counsel says the witness is a client?

A: The ethics opinion does not decide whether that relationship exists. If the interviewing lawyer knows the witness is represented in the matter, contact is barred absent consent or authorization.

Q: What safeguards apply to a permitted interview?

A: The lawyer must respect the organization's legal rights and comply with Rule 4-4.3 if the witness is unrepresented.

Background and rules framework

Rules 4-1.13 and 4-4.2 govern the represented organization and former constituents. Rules 4-4.3 and 4-4.4 govern dealings with an unrepresented person and respect for third-person legal rights.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(e), 4-1.13, 4-4.2, 4-4.3, and 4-4.4
• Missouri Rule 4-4.2 Comment [7]; Rule 4-4.4 Comment [1]

Other opinions cited:

• Missouri Informal Opinion 2013-01

See also

• Colorado Ethics Op. 69: Current and Former Organization Constituents
• Utah Ethics Op. 04-04: Former Employee of a Represented Organization
• Illinois Advisory Op. 09-01: Corporate Constituents

Source

• Landing page: Missouri Informal Opinion 2020-10

Original opinion text

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

QUESTION: May Attorney communicate with a witness who is a former member and director of an association without the consent of the association’s counsel about facts related to Client’s defamation claim against the association? The witness was a member of the association at the time of the allegedly defamatory statements but had resigned from its board of directors prior to the date the statements were made. Counsel for the association asserted a client-lawyer relationship with all members of the association, including the witness by name, but the membership of the witness in the association has since been terminated.

ANSWER: The association is a represented organization. See Rules 4–1.13 and 4–4.2, Comment [7]. Rule 4–4.2 prohibits direct contact about the subject of the representation with a person Attorney knows to be represented by another lawyer in the matter, unless Attorney has consent of the other lawyer or is authorized to do so by law or court order. The witness’s status as a former constituent of the organization does not place the witness within a category of individuals with whom communication is prohibited without consent of the organization’s lawyer, per the guidance in Comment [7] to Rule 4–4.2. See Informal Opinion 2013–01. However, if Attorney knows the witness is represented in this matter by the association’s lawyer or another lawyer, Rule 4–4.2 prohibits Attorney from communicating with the witness without the consent of the other lawyer, authorization by law, or a court order. See Rule 4–1.0(e), Terminology (defining “knows” as “actual knowledge, which can be inferred from the circumstances”). Whether a client-lawyer relationship exists between counsel for the association and the witness is a question of fact and law outside the scope of the Rules of Professional Conduct. If Attorney communicates with the witness, the lawyer must not use methods of obtaining evidence that violate the legal rights of the organization, such as engaging in unwarranted intrusions into a privileged relationship. See Rule 4–4.2, Comment [7], and Rule 4–4.4 and Comment [1]. If Attorney knows the witness is not represented by counsel in the matter, any communication with the witness must comply with Rule 4–4.3, Dealing With Unrepresented Person.