Could counsel for a corporate opponent contact a former employee's own lawyer about speaking with the employee?

Plain-English summary

A lawyer litigating against a corporation had been approached by its former employee, who claimed helpful information but faced legal issues in providing it. The question stated that ex parte contact with the former employee would be prohibited by Rule 4-4.2 and that the employee had retained a lawyer on those issues.

The opinion said the litigating lawyer could contact the former employee's own attorney, instead of the corporation's attorney, to seek permission to speak with the former employee.

Currency note

This 1994 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Whose lawyer could be contacted?

A: The former employee's own lawyer, according to the opinion.

Q: What contact did the question assume was prohibited?

A: Ex parte contact with the former employee under Rule 4-4.2.

Q: Did the opinion decide the employee could provide the information?

A: No. It answered the narrower question of whom to contact about permission to speak.

Background and rules framework

The opinion addressed a Rule 4-4.2 contact question involving a former corporate employee represented separately about information in the suit.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.2

See also

• Missouri Informal Op. 950095: Former employee and defendants' counsel contact
• Missouri Informal Op. 940194: Former employee contact functional test

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/940073/

Original opinion text

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

QUESTION: Attorney represents a client against a corporation. Attorney has been contacted by a former employee of the corporation with whom ex parte contact would be prohibited by Rule 4–4.2. The former employee has informed Attorney that he has information which would be helpful in the suit but that there are legal issues regarding his ability to provide the information. The former employee has retained his own attorney regarding these issues. May Attorney contact this attorney rather than the corporation´s attorney for permission to speak with the former employee. ANSWER: Yes.