Can a Pennsylvania lawyer interview an opposing party's former employee who signed a confidentiality agreement?

Plain-English summary

The opinion starts from the settled premise that under Rule 4.2 and its Comment [7] a lawyer may communicate with a former employee of an adverse party without the consent of the organization's lawyer, the same conclusion reached in PBA Opinions 1990-142 and 2005-200. It draws a line between information protected by attorney-client privilege or work product, which is protected by law and which a lawyer may not elicit, and information protected only by a private confidentiality agreement, which is protected only by contract. Because competent and diligent representation under Rules 1.1 and 1.3 includes interviewing third-party witnesses, the opinion concludes "the Inquiring Lawyer is under no duty to the third-party witness to ask about the applicability of a confidentiality agreement or otherwise discover its existence," and "the interview may proceed as long as the Inquiring Lawyer does not seek the disclosure of information covered by the attorney-client, work product or other applicable privileges protected by law."

The opinion reasons, consistent with Wisconsin Ethics Opinion E-07-01, that extending the Rules to contract-based duties would let an organization create an "impenetrable shield" by requiring constituents to sign agreements barring them from ever speaking with opposing counsel. It states that "regardless of the lawyer's knowledge of the existence of a confidentiality agreement that may bind a former employee, Rule 4.4 does not expand the duties created by Rule 4.2 with respect to the adverse party itself."

If the lawyer does learn of a confidentiality agreement, the opinion concludes Rule 4.4 imposes an added obligation to consider whether the interview would unfairly expose the former employee to liability, and the lawyer should ask whether disclosure would violate an applicable agreement. Because Rule 4.3(b) bars giving legal advice to an unrepresented person, "the Inquiring Lawyer cannot provide legal advice to the third-party witness on that issue"; the lawyer may instead suggest the witness obtain counsel and provide the opportunity to do so. As the opinion puts it, "it is up to the former employee, with or without the advice of counsel, to assess whether the agreement applies." If the former employee is represented, the lawyer may rely on that attorney's permission to proceed. The opinion expressly notes it "does not address the potential tort law implications of knowingly encouraging a former employee to breach a valid confidentiality agreement."

In practice

Under this opinion, a Pennsylvania lawyer may interview an adverse party's former employee to gather facts and need not investigate whether a confidentiality agreement binds the witness, so long as the lawyer does not seek privileged or work-product information. The opinion holds that once the lawyer learns of such an agreement, Rule 4.4 requires the lawyer to let the witness obtain independent advice rather than advise the witness directly, and that the lawyer may rely on the consent of the witness's own counsel when the witness is represented.

Common questions

Q: Do I have to ask a former employee whether they signed an NDA before interviewing them?

A: No. The opinion concludes the lawyer "is under no duty to the third-party witness to ask about the applicability of a confidentiality agreement or otherwise discover its existence."

Q: Does an NDA the witness signed stop me from interviewing them?

A: The opinion treats a private confidentiality agreement as a matter of contract, not the Rules, and concludes the interview may proceed as long as the lawyer does not seek privileged or work-product information.

Q: What changes if I find out the witness is bound by a confidentiality agreement?

A: Rule 4.4 then requires the lawyer to give the witness an opportunity to obtain independent legal advice; the opinion says the lawyer cannot advise the witness on whether the agreement applies.

Q: Can I rely on the witness's lawyer's permission?

A: Yes. The opinion concludes that if the former employee is represented, the lawyer may rely on that attorney's grant of permission, since that attorney has presumably satisfied Rule 4.4.

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 4.2 (communication with a represented person, and Comment [7] on an organization's former employees), Rule 4.4(a) (respect for the rights of third persons), and Rule 4.3(b) (no legal advice to an unrepresented person whose interests conflict with the client's), against the backdrop of competent and diligent representation under Rules 1.1 and 1.3. These track ABA Model Rules 4.2, 4.4, 4.3, 1.1, and 1.3.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 4.2 and Comment [7]; ABA Model Rule 4.2
• Pa.R.P.C. 4.4(a); 4.3(b); ABA Model Rules 4.4, 4.3
• Pa.R.P.C. 1.1, 1.3; ABA Model Rules 1.1, 1.3

Other opinions cited:

• PBA Formal Op. 1990-142: contacting an adverse party's former employee
• PBA Formal Op. 2005-200: ex parte former-employee communications
• Wisconsin Ethics Op. E-07-01 (2007): contract-based confidentiality duties

Secondary authority:

• Restatement (Third) of the Law Governing Lawyers § 102 cmt. 2

See also

• PA Bar Ethics Op. 2026-200: Referencing or Inquiring About Immigration Status
• ABA Formal Op. 11-460: Receiving a Third Party's Email With Counsel

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2024-300.pdf