In a suit against a company, can the opposing lawyer interview the company's current or former employees without defense counsel's permission, and ask what they told the company's lawyers?

Plain-English summary

A plaintiff's lawyer is litigating against a corporate defendant represented by defense counsel. A current employee and a former employee of the corporate defendant are not separately represented. The opinion asks whether the plaintiff's lawyer may talk to the current employee about the facts, whether the lawyer may talk to the former employee, and whether the lawyer may discuss with either of them their communications with defense counsel.

On the current employee, the opinion says it depends. Applying Oregon RPC 4.2 and, in the absence of express Oregon authority, adopting a managing-and-conduct test, the opinion concludes: (1) if the current employee is part of corporate management or is an officer or director, the employee is "represented" within RPC 4.2 even without individual counsel; (2) if the current employee's conduct is at issue (for example, where the plaintiff seeks to hold the company vicariously liable for that employee's acts), the employee is also "represented"; and (3) if neither category applies, the plaintiff's lawyer may contact the current employee without defense counsel's consent (unless the employee has personal counsel on the matter, whose consent is then needed).

On the former employee, the answer is simpler: former employees and former officers or directors who are not in fact individually represented are not "represented" under RPC 4.2, so the plaintiff's lawyer may contact them without defense counsel's permission.

On the third question, the opinion answers no, qualified. The plaintiff's lawyer may not use any conversation with a current or former employee to invade the company's lawyer-client privilege, and may not ask or permit the employee to disclose privileged communications with defense counsel about the matter. The opinion grounds this in Oregon's privilege rules (OEC 503) and confidentiality principles, noting the privilege can reach employees acting within the scope of their employment to further the representation, and reaches communications with former employees about the subject of their employment. Unless the company has waived the privilege or the communications are otherwise not privileged, the lawyer may not discuss them.

In practice

The opinion holds that, under Oregon RPC 4.2, the no-contact rule reaches a represented company's current managerial employees, officers, and directors, and current employees whose conduct is at issue; other current employees and unrepresented former employees may be contacted without defense counsel's consent. Independently of RPC 4.2, the lawyer may not use the contact to extract the company's privileged communications with its counsel. The analysis turns on the employee's role and on the separate line protecting privilege. Verify the current text of Oregon RPC 4.2, RPC 1.6, and OEC 503 before relying on any specific point.

Common questions

Q: Can I interview the defendant company's current employees without going through their lawyer?

A: It depends on the employee. The opinion concludes you need consent only if the employee is management, an officer or director, or someone whose conduct is at issue; otherwise you may contact a current employee directly (unless they have personal counsel on the matter).

Q: Can I contact former employees of the company?

A: Yes. The opinion concludes former employees who are not individually represented are not "represented" under RPC 4.2, so you may contact them without defense counsel's permission.

Q: Can I ask an employee what they told the company's lawyers?

A: No, qualified. The opinion concludes you may not use the contact to invade the company's lawyer-client privilege, including by asking the employee to disclose privileged communications with corporate counsel, unless the privilege is waived or the communication is otherwise not privileged.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communicating with a represented person) as applied to organizational constituents, and the confidentiality and privilege limits in Oregon RPC 1.6, ORS 9.460(3), and OEC 503. These correspond to Model Rules 4.2 and 1.6. The analysis adopts a test keying "representation" to managerial status and to whether the employee's conduct is at issue, while treating the lawyer-client privilege as a separate, independent limit.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with a represented person)
• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)

Statutes and evidence code:

• ORS 9.460(3) (duty to maintain client confidences)
• OEC 503 (lawyer-client privilege; representative of the client)

Cases:

• Upjohn Co. v. United States, 449 US 383, 101 S Ct 677 (1981)
• Brown v. State of Oregon, Dep't of Corr., 173 FRD 265 (D Or 1997)
• Admiral Ins. Co. v. U.S. District Court, 881 F2d 1486 (9th Cir 1989)

Other opinions cited:

• ABA Formal Ethics Op. No. 91-359 (contact with former employees)
• OSB Formal Ethics Op. No. 2005-50; OSB Formal Ethics Op. No. 2005-44

See also

• OSB Ethics Op. 2005-6: Communicating With Represented Persons
• OSB Ethics Op. 2005-42: Communicating With a Prospective Defendant

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-80.pdf