I deposed a former employee of the defendant corporation, and she had her own lawyer at the deposition. Can I meet with her ex parte now, without going through that lawyer?

Plain-English summary

The inquiring attorney represents the plaintiff in a lawsuit against a now-defunct corporation and the physician who was its sole shareholder. The attorney had already deposed a former employee of the corporation, who worked as a medical assistant and office manager, and who was represented by counsel at that deposition. The attorney asked the panel whether he or she could now meet with the former employee ex parte, without going through that lawyer.

The panel applied Rule 4.2, which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, unless that lawyer consents or the communication is authorized by law or court order. The panel noted the comment to Rule 4.2 applies the rule to communications with "any person who is represented by counsel concerning the matter to which the communication relates." Because the former employee was represented by counsel at her deposition in this same lawsuit, the panel concluded Rule 4.2 applies to her directly, and the inquiring attorney must obtain the consent of the lawyer who represented her at the deposition before communicating or meeting with her about matters relating to the lawsuit.

In practice

The opinion holds that Rule 4.2's bar on communicating with a represented person turns on whether the lawyer knows the specific person is represented by another lawyer "in the matter," and applies that bar here because the former employee had her own counsel at a deposition in the same lawsuit. The opinion does not address, and this page does not extend the holding to, situations where a former corporate employee has no individual counsel of record in the matter.

Common questions

Q: I already deposed a witness who had her own lawyer there. Can I talk to her again without that lawyer?

A: The opinion holds no. Because the witness was represented by counsel at the deposition in the same lawsuit, Rule 4.2 requires the inquiring attorney to obtain that lawyer's consent before communicating or meeting with her about matters relating to the case.

Q: Does it matter that she's a former employee rather than a current employee of the defendant?

A: The opinion does not turn on her employment status with the corporate defendant; it turns on the fact that she was represented by counsel at her deposition in the matter, which the panel found brought her within Rule 4.2's bar on contacting a person known to be represented by another lawyer "in the matter."

Background and rules framework

The opinion applies Rhode Island Rule 4.2 (Communication With Person Represented by Counsel), which bars a lawyer from communicating about the subject of the representation with a person known to be represented by another lawyer in the matter, absent that lawyer's consent or authorization by law or court order. The opinion quotes the comment to Rule 4.2, which extends the rule to communications with any person represented by counsel concerning the matter to which the communication relates.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 91-359: Contact With Former Employee of Adverse Corporate Party
• Alabama Ethics Op. 1992-12: Lawyer may contact former employee of opposing party ex parte unless contact is intended to deal with privileged matter
• ABA Formal Op. 95-396: Communications With Represented Persons

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202011-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2011-03 Issued
July 14, 2011

FACTS

The inquiring attorney represents the plaintiff in a lawsuit. The defendants are a now
defunct corporation, and a physician who was the sole shareholder in the corporation. The
inquiring attorney seeks to have an ex parte meeting with a former employee of the defendant
corporation. The inquiring attorney has deposed the former employee, who served as a medical
assistant and office manager. The employee was represented by counsel at the deposition.

ISSUE

The inquiring attorney asks whether the Rules of Professional Conduct permit him/her to
have an ex parte meeting with the corporate defendant's former employee.

OPINION

Rule 4.2 requires that the inquiring attorney must obtain the consent of the lawyer who
represented the former employee at his/her deposition before communicating or meeting with the
former employee about matters relating to the lawsuit.

REASONING

In the instant inquiry, the former employee of the corporate defendant was represented by
counsel at a deposition relating to the lawsuit. The Panel is of the opinion, therefore, that Rule
4.2 entitled "Communication with person represented by counsel," applies. Rule 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of
the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized to do so by law or a court order.

The Comment to Rule 4.2 explains:

This Rule applies to communications with any person who is represented by
counsel concerning the matter to which the communication relates.

The Panel concludes that the inquiring attorney must obtain the consent of the lawyer
who represented the former employee at his/her deposition before communicating or meeting
with the former employee about matters relating to the lawsuit.