Can a lawyer interview a nonmanagerial employee of a represented corporate adversary without the consent of the corporation's counsel?

Plain-English summary

The inquiry arose in a workers' compensation matter in which the employer was represented by counsel. It asked whether the claimant's attorney could contact a nonmanagerial co-employee of the claimant to discuss the circumstances of the alleged accident without obtaining the consent of the employer's counsel.

The opinion answered yes. It read Rule 7.4(a) to prohibit contact only with those employees of a represented corporate party who have managerial responsibility or who have been authorized to speak for the corporation. Rank-and-file employees whose personal acts or omissions are not at issue may ordinarily be interviewed without the knowledge or consent of the corporate party or its counsel. The opinion cited CPR 2 in support.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 7.4(a), the no-contact rule) has since been renumbered and revised (the corresponding Model Rule is 4.2). 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 Treat this page as historical context, not current guidance.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: Which corporate employees did the no-contact rule cover?

A: The opinion concluded that Rule 7.4(a) reached only employees with managerial responsibility or who were authorized to speak for the corporation.

Q: Could a nonmanagerial co-employee be interviewed without counsel's consent?

A: Yes. The opinion concluded that rank-and-file employees whose personal acts or omissions are not at issue may ordinarily be interviewed without the corporation's or its counsel's knowledge or consent.

Q: Did it matter that the employer was represented and a claim had been filed?

A: The opinion answered the question in that posture and still permitted the contact, because the targeted co-employee was nonmanagerial and his own conduct was not at issue.

Background and rules framework

The opinion applied North Carolina Rule 7.4(a), the no-contact rule barring communication with a represented party (corresponding to Model Rule 4.2). For a corporate party, the opinion treated the rule as covering only employees with managerial responsibility or authority to speak for the corporation, leaving rank-and-file employees outside the prohibition where their own acts are not in issue.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 7.4(a) (communication with a represented party)
• MR 4.2 (communication with person represented by counsel)

Other opinions cited:

• CPR 2 (North Carolina): contact with employees of a represented corporate party

See also

• NC Ethics Op. RPC 81: interviewing the former employee of an adverse corporate party
• NC Ethics Op. RPC 87: interviewing nonparty witnesses
• NC Ethics Op. RPC 93: interviewing codefendants in criminal cases

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-67/

Original opinion text

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

Inquiry:

After a workers' compensation claim has been filed and the employer is represented by counsel, may the claimant's attorney contact a nonmanagerial co-employee of the claimant to discuss the circumstances of the alleged accident without obtaining consent of counsel for the employer?

Opinion:

Yes. Rule 7.4(a) of the Rules of Professional Conduct generally prohibits contact with only those employees of a represented corporate party which have managerial responsibility or who have been authorized to speak for the corporation. Rank and file employees whose personal acts or omissions are not at issue may ordinarily be interviewed without the knowledge or consent of the corporate party or its counsel. See CPR 2.