Can a plaintiff's lawyer interview a rank-and-file employee of the adverse corporation before calling that employee as a witness?

Plain-English summary

At a final pretrial conference, both plaintiff's counsel and counsel for a defendant corporation advised the court that a specified witness, a rank-and-file employee of the defendant corporation, would be called by both sides; the plaintiff subpoenaed the employee. The inquiry asked whether plaintiff's lawyer could interview this witness before putting him on the stand.

The opinion concluded yes, and that this would be ethical even if the witness were not subpoenaed by the plaintiff. Subject to DR 7-104(A)(1), which prohibits a lawyer from communicating about the subject of litigation with a party he knows to be represented by a lawyer in the matter, a lawyer may properly interview any person who is not a party and who he believes has knowledge of relevant facts. Interviewing a rank-and-file employee of an adverse corporate party is not communicating with an adverse party within the meaning of DR 7-104(A)(1), because witnesses do not belong to any party.

Currency note

This opinion was issued in 1974 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The provision it applied (DR 7-104(A)(1) on communicating with a represented party) corresponds to today's Model Rule 4.2, and the treatment of an organization's employees has since been refined. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer interview an adverse corporation's rank-and-file employee?

A: Yes. The opinion concluded that interviewing a rank-and-file employee of an adverse corporate party is not communicating with the adverse party itself, so it is permitted (DR 7-104(A)(1)).

Q: Does it matter whether the employee was subpoenaed?

A: No. The opinion concluded the interview would be ethical even if the witness were not subpoenaed by the plaintiff.

Q: Why isn't the employee treated as the adverse party?

A: The opinion concluded that witnesses do not belong to any party, so a non-party employee with knowledge of relevant facts may be interviewed.

Background and rules framework

The opinion applied the former North Carolina DR 7-104(A)(1) on communication with a represented party (corresponding to today's Model Rule 4.2). The analysis turned on the distinction between the corporate party itself and a rank-and-file employee who is merely a witness, who may be interviewed.

Citations and references

Rules of Professional Conduct:

• North Carolina DR 7-104(A)(1) (Code of Professional Responsibility; communication with a represented party)
• MR 4.2 (communication with represented persons)

See also

• NC Ethics Op. RPC 15: contacting an unrepresented party
• NC Ethics Op. RPC 18: conflict in a derivative action

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-2/

Original opinion text

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

Inquiry:

Dated December 3, 1973.

When both counsel for the plaintiff and counsel for a defendant corporation advise the court at final pretrial conference that a specified witness who is a rank-and-file employee of defendant corporation will be called by both plaintiff and defendant and this person is subpoenaed as a witness by the plaintiff, is it ethical for plaintiff's lawyer to interview this witness before putting him on the stand?

Opinion:

Yes. This would be ethical even if the witness were not subpoenaed by the plaintiff. Subject to the provisions of DR 7-104(A) (1), prohibiting a lawyer from communicating on the subject of litigation with a party he knows to be represented by a lawyer in that matter, a lawyer may properly interview any person not a party to the litigation who he believes to have knowledge of relevant facts. Interviewing a rank-and-file employee of an adverse corporate party is not communicating with an adverse party within the meaning of DR 7-104(A) (1). Witnesses do not "belong" to any party.