Under this historical opinion, which government employees could opposing counsel contact ex parte?

Plain-English summary

The lawyer represented a litigant against a governmental entity with multiple offices and asked which employees could be contacted without opposing counsel. The opinion applied Rule 4-4.2 to current nonmanagerial employees: contact depended on whether their conduct could be imputed to the employer or they could make binding admissions. It barred contact with managerial employees of the entity regardless of office.

For former managerial and nonmanagerial employees, the opinion applied the same test, citing State ex rel. Pitts v. Roberts. It allowed contact with employees of the government who were outside the particular litigating entity unless the government itself was a party apart from that entity.

The official source now warns that Rule 4-4.2 and its comments regarding former employees have changed substantially since issuance. The historical answers are presented here with that source warning.

Currency note

The official source warns, 'Rule 4–4.2 and its comments regarding former employees have changed substantially since this informal advisory opinion was issued.' It gives no date for the change (https://mo-legal-ethics.org/informal-opinion/950114/). This 1995 opinion also 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. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Could counsel contact nonmanagerial employees of the litigating entity?

A: Under the historical answer, only if their acts could not be imputed to the employer and they could not make binding admissions.

Q: Did working in another office change the answer?

A: No. The opinion used the same nonmanagerial test and barred contact with managerial employees across the entity.

Q: How did it treat former employees?

A: It used the same test under Pitts, but the official source warns that the rule and comments on former employees changed substantially.

Q: Could counsel contact staff outside the litigating entity?

A: The opinion allowed that if the government itself was not also a party beyond its entity.

Background and rules framework

The original answer applied Missouri Rule 4-4.2 and cited State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo. banc 1993), for treating current and former employees alike. The source's later note warns of substantial rule and comment changes.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.2

Cases:

• State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo. banc 1993), former-employee contact analysis

See also

• Missouri Informal Op. 950161: Copying a represented party
• Missouri Informal Op. 20000108: Contacting an insured driver

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950114/

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: Attorney represents a person engaged in litigation with a governmental entity. The entity is large and has a number of offices at different locations which operate relatively independently of each other. Attorney´s questions all relate to contemplated ex parte communications. Question (1): May Attorney speak with non-management employees of the same office who have knowledge regarding the matter? Answer (1): Under Rule 4–4.2 Attorney may speak with non-management employees of the same office on an ex parte basis, only if those employees” acts or omissions cannot be imputed to the employer and they cannot make admissions that will be binding on the employer. This analysis is set forth in the second paragraph of the comment to the rule. Question (2): May Attorney speak with employees at other offices regarding the matter? Answer (2): The answer is essentially the same as the answer to Question (1). Attorney may not speak to managerial employees of the governmental entity about this case regardless of whether they were employed at the same office. For non-managerial employees, the analysis is the same as described in Question (1). Question (3): May Attorney speak with former managerial or non-managerial employees of the same office? Answer (3): Under State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo. banc 1993), it does not matter whether the employees are current or former employees — the analysis is the same. Question (4): May Attorney discuss the case with other employees of the same government but who are not employees or former employees of the entity that is a party to the case? Answer (4): Unless the government itself is a party to the action other than through one of its entities Attorney may contact employees of the government who are not employees or former employee of the particular entity on an ex parte basis.