Can a plaintiff's lawyer interview current and former employees of a state agency defendant without the Attorney General's consent?

Plain-English summary

A plaintiff brings an employment claim against an Oregon state agency where the plaintiff formerly worked; the agency is represented by the Attorney General's Office. Plaintiff's lawyer wants to interview a current agency employee and two former employees (one no longer with any state agency, one now at a different, non-defendant agency), none of whom are separately represented. The opinion addresses whether the lawyer may speak with each without the Attorney General's permission, and whether notice to the Attorney General is required. The conclusions: the current employee is "see discussion," each former employee is "yes, qualified," and notice is "no."

The opinion applies Oregon RPC 4.2 and follows the corporate-defendant analysis of OSB Formal Ethics Op. No. 2005-80. For an organization, officers, directors, and management are deemed represented by the entity's counsel, as is any person whose conduct is at issue. The opinion holds the same analysis applies to current state-agency employees (In re Spies): absent the Attorney General's consent, the lawyer may not speak with the current employee if the employee's conduct is at issue or the employee is part of agency management. A current employee outside those categories is not considered represented and may be contacted without consent.

For former employees, the opinion again follows OSB Formal Ethics Op. No. 2005-80: the lawyer need not get permission to contact the first former employee, but must not use the discussions to invade the state's privileged communications. The same rule applies to the second former employee; the fact that this person now works for a different state agency does not trigger the current-employee rules (Brown v. State of Oregon, Department of Corrections). Finally, when contact with a current or former employee is not prohibited under Oregon RPC 4.2, the lawyer need not notify the Attorney General of the proposed contact.

In practice

The opinion holds that the Oregon RPC 4.2 no-contact rule reaches a government entity through the same managerial/conduct-at-issue test used for corporate employees, so most current employees and all former employees of an agency may be interviewed without opposing counsel's consent. Per the opinion, the analysis turns on the employee's role (management or conduct-at-issue) for current employees, and on avoiding privileged communications for former employees, with no separate notice obligation where contact is allowed. Verify the current text of Oregon RPC 4.2 before relying on any specific point.

Common questions

Q: Can a plaintiff's lawyer interview a current state-agency employee without the AG's permission?

A: Sometimes. The opinion concludes the lawyer may not contact a current employee whose conduct is at issue or who is part of agency management, but may contact other current employees without the Attorney General's consent.

Q: What about former agency employees?

A: The opinion concludes the lawyer may contact former employees without permission, including one now at a different agency, but must not use the discussions to invade the state's privileged communications.

Q: Does moving to a different state agency change a former employee's status?

A: No. The opinion concludes the second former employee's new employment at a different, non-defendant agency does not require applying the current-employee rules.

Q: Must the lawyer notify the Attorney General before contacting these employees?

A: No. The opinion concludes that when the contact is not prohibited under Oregon RPC 4.2, there is no requirement to notify the Attorney General.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with a represented person) in the organizational setting, corresponding to Model Rule 4.2, applying the entity no-contact analysis from OSB Formal Ethics Op. No. 2005-80 to a state-agency defendant. It assumes the employees are fact witnesses rather than quasi-judicial decision-makers (which would also implicate Oregon RPC 3.5).

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with represented persons; organizational employees)

Cases:

• In re Spies, 316 Or 530, 852 P2d 831 (1993) (entity no-contact analysis applied to state-agency employees)
• Brown v. State of Oregon, Department of Corrections, 173 FRD 265 (D Or 1997) (contact with current and former agency employees)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-80 (rev 2026) (contacting corporate/entity employees)
• OSB Formal Ethics Op. No. 2005-144 (rev 2026) (formal public-records requests exception)

See also

• OSB Ethics Op. 2005-80: Contacting Corporate Employees
• OSB Ethics Op. 2005-144: Obtaining Public Records From a Represented Public Body
• OSB Ethics Op. 2005-6: Communicating With Represented Persons

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-152.pdf