May a personal-injury lawyer interview an apparently unrepresented liable person or company employee?

Plain-English summary

A personal-injury lawyer asked about speaking with a potentially liable person and, separately, with a company employee believed to be unrepresented.

The opinion permits a statement from a person the lawyer does not know or have reason to know is represented. It cautions that an employee or former employee may be treated as represented if the entity has counsel and directs attention to the then-current Rule 4-4.2 comment. For an unrepresented person, Rule 4-4.3 applies. The official page warns that the former-employee comments later changed substantially.

Currency note

The official page states that Rule 4-4.2 and its comments regarding former employees changed substantially after this 1996 opinion. Treat its answer as historical context and verify current rules before relying on it.

Common questions

Q: What knowledge limits direct contact?

A: Knowledge or reason to know that the intended contact is represented by counsel.

Q: Does an employee’s apparent lack of personal counsel always settle the issue?

A: No. The opinion says entity representation may encompass the employee under the then-current comment.

Background and rules framework

The answer cites Rules 4-4.2 and 4-4.3; the source flags substantial later changes to former-employee guidance.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2
• Rule 4-4.3

See also

• Missouri Informal Op. 960252: Former Manager Contact
• Missouri Informal Op. 960293: Business Employee Interview

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/960192/
• Rule revision reference: Missouri Informal Opinion 970082

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: In the course of representing the plaintiff in a personal injury case, may Attorney communicate with the person who Attorney believes is liable, if that person is not represented by counsel? Is the answer the same if the person is an employee of a company that is not represented by counsel? ANSWER: If Attorney does not know, or have reason to know, that the person whom Attorney intends to contact is represented by counsel, Attorney may make contact with that person and take a statement without violating Rule 4–4.2. If Attorney´s contact with that person is based on that person´s employment or former employment by an entity, that person may be considered to be represented if the entity is represented. The second paragraph of the comment to Rule 4–4.2 sets out the test. If Attorney does make contact with an unrepresented person, Attorney must follow the requirements of Rule 4–4.3.