Which current or former company drivers could a lawyer contact ex parte after a company vehicle accident?

Plain-English summary

A lawyer asked about ex parte contact with three witnesses employed or formerly employed by a represented company after its vehicle's accident: a dismissed defendant driver, an uninvolved current driver, and a former driver with vehicle-maintenance duties.

The opinion barred contact with the first, allowed the second, and barred contact with the third if that person had any maintenance responsibility for the accident vehicle, whether or not the duty was fulfilled. The official source warns that Rule 4-4.2 and its former-employee comments later changed substantially.

Currency note

The official source states: 'Rule 4–4.2 and its comments regarding former employees have changed substantially since this informal advisory opinion was issued.' This 1993 answer also predates Missouri's 2007 rule amendments, identified in an official reference note. Treat the witness-by-witness analysis as historical context and verify current rules before relying on it.

Common questions

Q: Could counsel contact the dismissed driver defendant?

A: No, under this historical opinion.

Q: Could counsel contact an uninvolved current company driver?

A: Yes, according to the opinion.

Q: What condition affected the former maintenance driver?

A: Any responsibility for maintaining the accident vehicle barred contact, even if the person did not perform the duty.

Background and rules framework

The opinion gave three witness-specific contact answers. Its official note flags subsequent changes to Rule 4-4.2 and the former-employee comments.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.2

See also

• Missouri Informal Op. 930164: Former employee contact and rule change
• Missouri Informal Op. 950105: Former management employee contact

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/930138/

Original opinion text

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

[NOTE: Rule 4–4.2 and its comments regarding former employees have changed substantially since this informal advisory opinion was issued.]

QUESTION: May Attorney make ex parte contact with three witnesses who work for a company whose driver was involved in an accident which is the subject of a suit? Witness #1:driver, dismissed as defendant, former employee, has been deposed. Witness #2:another driver for company, not involved in accident. Witness #3:another driver and vehicle maintenance, former employee, not a defendant. ANSWER: Witness #1: No. Witness #2: Yes. Witness #3: Not if this witness had any maintenance responsibility involving the vehicle in the accident regardless of whether the witness fulfilled that responsibility.