Under this historical Missouri opinion, when could counsel contact an employer's current or former employees directly?

Plain-English summary

A lawyer representing a discrimination claimant asked about direct contact with an employer's current and former managerial and non-managerial employees. The question also asked whether an EEOC charge or court complaint changed the result.

When the lawyer knew the employer was represented in the matter, the opinion prohibited direct contact with current and former managerial employees. It permitted direct contact with current and former non-managerial employees only if their admissions would not bind the employer and their acts or omissions would not be imputed to it. Filing a charge or complaint did not change the answer; knowledge of the employer's representation did. The official page flags later substantial changes to Rule 4-4.2 and its comments regarding former employees.

Currency note

The official opinion warns that Rule 4-4.2 and its comments regarding former employees have changed substantially since this 1996 opinion. This 1996 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: Could counsel directly contact a current or former manager?

A: Not when counsel knew that the employer was represented in the matter, under the opinion's answer.

Q: When did the opinion permit contact with non-managerial employees?

A: When their admissions would not bind the employer and their acts or omissions would not be imputed to it.

Q: Did an EEOC charge or filed case change the answer?

A: No. The opinion said the answer changed with counsel's knowledge that the employer was represented in the matter.

Background and rules framework

The opinion's answer addresses contact with an employer's employees and expressly makes knowledge of representation material. Its official prefatory note identifies Rule 4-4.2 and warns of substantial later changes to that rule and its former-employee comments.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.2 (identified in the official prefatory note)

See also

• Missouri Informal Op. 960099: Former employee contact across states
• Missouri Informal Op. 960252: Former store manager contact

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/960085/

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´s client has a claim of discrimination against Employer. May Attorney contact the following without going through the attorney for Employer: 1. managerial employee currently employed by Employer? 2. non-managerial employees currently employed by Employer? 3. managerial employees no longer employed by Employer? 4. non-managerial employees no longer employed by Employer? Do the answers change depending on whether or not charges have been filed with the EEOC or a complaint filed in court? ANSWER: Questions 1 and 3. If Attorney knows that Employer is represented by counsel in this matter, Attorney may not contact current or former managerial employees. Questions 2 and 4. Attorney may contact current and former non-managerial employees if they are not employees whose admissions would be binding on Employer and they are not employees whose acts or omissions would be imputed to employer. The answers do not change based on whether a complaint or case has been filed but they do change based on whether or not Attorney knows Employer is represented by counsel in this matter.