I want to talk to a former employee of the corporation I'm suing, who has personal knowledge about the facts and might become my expert witness. Do I need the defendant's lawyer to sign off first?

Plain-English summary

The inquiring attorney represents a plaintiff in a personal injury lawsuit against a national corporation and wants to speak with a former employee of the defendant who has personal knowledge of a toxic substance's presence on company premises, an issue in the case. The former employee also has relevant expertise, and the attorney is interested in retaining her as an expert witness. The attorney had already spoken with the former employee to discuss her qualifications as an expert and to ask whether she would be willing to discuss the substance's presence on the defendant's premises.

The panel applied Rule 4.2, which bars a lawyer from communicating about the subject of a representation with a person known to be represented by another lawyer in the matter, absent that lawyer's consent or legal authorization. Comment 7 to Rule 4.2 explains that for a represented organization, the rule bars contact only with a constituent who supervises, directs, or regularly consults with the organization's lawyer about the matter, who can bind the organization on the matter, or whose conduct may be imputed to the organization for liability purposes, and that consent of the organization's lawyer is not required to communicate with a former constituent. The panel noted its own 1991 advisory opinion (R.I. Supreme Court Ethics Advisory Panel Op. 91-74) already concluded the Rules do not bar ex parte interviews of a corporate adversary's former employees, and that ABA Formal Opinion 91-359 (1991) reached the same result under the identical Model Rule 4.2, later reaffirmed in ABA Formal Opinion 95-396 n.47 (1995): "Rule 4.2 does not prohibit contacts with former officers or employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed."

The panel also cited courts reaching the same conclusion, quoting the Massachusetts Supreme Judicial Court in Clark v. Beverly Health and Rehabilitation Services, Inc., 797 N.E.2d 905, 909-910 (Mass. 2003), for the proposition that Rule 4.2 exists to protect the attorney-client relationship and prevent ill-advised client statements, not to shield an organization from the disclosure of unfavorable facts merely because they arose in the workplace, and citing P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. App. 2002), Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996), and Dent v. Kaufman, 406 S.E.2d 68 (W.Va. 1991), as reaching similar conclusions. The panel concluded Rule 4.2 permits the ex parte contact with the former employee without opposing counsel's consent, while cautioning the attorney to abide by other ethical obligations in doing so.

In practice

The opinion holds that Rule 4.2's bar on communicating with a represented organization's constituents does not reach former employees, so a lawyer may communicate ex parte with a corporate adversary's former employee about the subject of the litigation without the consent of the organization's counsel. The opinion adds that the lawyer must still abide by other ethical obligations imposed by the Rules when doing so, without specifying what those obligations require on these facts.

Common questions

Q: Do I need the other side's permission to talk to their former employees about my case?

A: No. The opinion holds Rule 4.2 does not prohibit ex parte communication with a represented organization's former employees, so no consent from opposing counsel is required.

Q: Does it matter that I might hire this former employee as my expert witness?

A: The opinion does not treat the possible expert-witness retention as changing the Rule 4.2 analysis; the holding rests on the former employee's status as a former, not current, constituent of the defendant corporation.

Q: Why doesn't the same rule that stops me from contacting current employees of the other side apply to former employees?

A: The opinion explains, citing Comment 7 to Rule 4.2 and prior authority, that consent of the organization's lawyer is not required to communicate with a former constituent, and that courts have reasoned Rule 4.2 protects the attorney-client relationship rather than shielding an organization from unfavorable facts that happen to have arisen in the workplace.

Background and rules framework

The opinion applies Rhode Island Rule 4.2 (Communication With Person Represented by Counsel), which bars communicating about the subject of a representation with a person known to be represented by another lawyer in the matter, and its Comment 7, which limits the rule's reach as to organizations to current constituents who supervise or consult with the organization's lawyer, can bind the organization on the matter, or whose acts may be imputed to it, and confirms that consent is not required to contact a former constituent.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel) and Comment 7 (scope as to organizational constituents, including former constituents)

Statutes:

• None cited.

Cases:

• Clark v. Beverly Health and Rehabilitation Services, Inc., 797 N.E.2d 905 (Mass. 2003), ex parte contact with a corporate adversary's former employees does not violate Rule 4.2
• P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. App. 2002), no limitations on contacts with former employees of an adverse party under Rule 4.2
• Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996), ex parte communications with a defendant's former managers do not violate Rule 4.2
• Dent v. Kaufman, 406 S.E.2d 68 (W.Va. 1991), Rule 4.2 does not exist to protect a corporate party from revelation of prejudicial facts

Other opinions cited:

• Rhode Island Supreme Court Ethics Advisory Panel Op. 91-74 (1991): the Rules of Professional Conduct do not prohibit attorneys and their agents from conducting ex parte interviews of former employees of an adverse corporate party.
• ABA Formal Op. 91-359 (1991): Model Rule 4.2 does not prohibit communications with former employees of a represented organization.
• ABA Formal Op. 95-396, n.47 (1995): reaffirming that Rule 4.2 does not prohibit contacts with former officers or employees of a represented corporation.

See also

• ABA Formal Op. 91-359: Contact With Former Employee of Adverse Corporate Party
• ABA Formal Op. 95-396: Communications With Represented Persons
• Rhode Island Ethics Advisory Panel Op. 2011-03: Ex Parte Meeting With a Corporate Defendant's Former Employee Who Was Represented by Counsel at Deposition
• Alabama Ethics Op. 1992-12: Lawyer may contact former employee of opposing party ex parte unless contact is intended to deal with privileged matter

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%2012-02.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. 2012-02
Issued February 9, 2012

FACTS

The inquiring attorney represents a plaintiff in a personal injury lawsuit against a
national corporation. The inquiring attorney seeks to communicate with a former
employee of the defendant corporation who has personal knowledge regarding the
presence of a toxic substance on the company premises. The presence of the substance and
the effects of exposure to it are matters at issue in the lawsuit. The former employee also
has expertise in the toxic substance and the inquiring attorney is interested in retaining the
former employee as an expert witness. The inquiring attorney states that he/she has spoken
with the former employee to discuss qualifications as an expert, and to ask whether the
former employee would be agreeable to speak with the inquiring attorney about the
presence of the substance on the defendant's premises.

ISSUE PRESENTED

The inquiring attorney, who represents a plaintiff in a lawsuit against a corporation,
asks whether the Rules of Professional Conduct permit him/her to communicate ex parte
with a former employee of the defendant corporation without the consent of opposing
counsel.

OPINION

Rule 4.2 permits the inquiring attorney, who represents a plaintiff in a lawsuit
against a corporation, to communicate ex parte with a former employee of the defendant
corporation without the consent of opposing counsel.

REASONING

Rule 4.2 which prohibits lawyers from communicating with persons represented by
counsel, is pertinent to this inquiry. It provides as follows:

Rule 4.2. Communication with person represented by
counsel. 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.

Comment [7] to Rule 4.2, which addresses the issue of communicating with
constituents of a represented organization, is instructive. The Comment states:

[7] In the case of a represented organization, this Rule
prohibits communications with a constituent of the
organization who supervises, directs or regularly consults
with the organization's lawyer concerning the matter or has
authority to obligate the organization with respect to the
matter or whose act or omission in connection with the
matter may be imputed to the organization for purposes of
civil or criminal liability. Consent of the organization's
lawyer is not required for communication with a former
constituent. If a constituent of the organization is
represented in the matter by his or her own counsel, the
consent by that counsel to a communication will be
sufficient for purposes of this Rule. Compare Rule 3.4(f).
In communicating with a current or former constituent of
an organization, a lawyer must not use methods of
obtaining evidence that violate the legal rights of the
organization.

In 1991, this Panel issued an advisory opinion, stating that the Rules of
Professional Conduct do not prohibit attorneys and their agents from conducting ex parte
interviews of former employees of an adverse corporate party. R.I. Supreme Court Ethics
Advisory Panel Op. 91-74 (1991). Also, in ABA Formal Opinion 91-359 (1991), the
American Bar Association Standing Committee on Ethics and Professional Responsibility
concluded that Model Rule 4.2, which is identical to its Rhode Island counterpart, does not
prohibit communications with former employees of a represented organization. More
recently, the ABA Standing Committee noted:

It should be noted that Rule 4.2 does not prohibit contacts
with former officers or employees of a represented
corporation, even if they were in one of the categories with
which communication was prohibited while they were
employed. This Committee so concluded in ABA Formal
Op. 91-359 (1991.) ABA Formal Op. 95-396, n. 47 (1995).

Courts have similarly determined that ex parte communications with former
employees of an opposing party do not violate Rule 4.2. In Clark v. Beverly Health and
Rehabilitation Services, Inc., 797 N.E.2d 905 (Mass. 2003), the Supreme Judicial Court of
Massachusetts reasoned that Rule 4.2 was intended to protect only the attorney-client
relationship, and not the underlying facts. 797 N.E.2d at 910. The court stated:

The purpose of rule 4.2 would not be served by
including former employees within its reach. Rule 4.2
exists "to protect the attorney-client relationship and
prevent clients from making ill-advised statements without
counsel of their attorney." (citations omitted.) In the
context of organizational entities, it aims to balance, on the
one hand, a litigant's need for information and, on the
other, an organization's need to protect its legitimate
interests. (citation omitted.) An organization's attorney-
client relationship is appropriately protected when the no-
contact rule is construed to prohibit ex parte
communication with employees "who are so closely tied
with the organization or the events at issue that it would be
unfair to interview them without the presence of the
organization's counsel." (citation omitted.) Preventing the
disclosure of unfavorable facts merely because they happen
to have occurred in the workplace is not a legitimate
organizational interest for purposes of applying rule 4.2.
(citations omitted.) Id. at 909-910.

Other courts have similarly concluded. See, e.g. P.T. Barnum's Nightclub v.
Duhamell, 766 N.E.2d 729 (Ind. App. 2002) (no limitations on contacts with former
employees of adverse party contained in rule 4.2); Orlowski v. Dominick's Finer Foods,
Inc., 937 F. Supp. 723 (N.D. Ill. 1996) (ex parte communications between plaintiffs
counsel and former managers of defendant do not violate rule 4.2); Dent v. Kaufman, 406
S.E. 2d 68 (W.Va. 1991) (rule 4.2 does not exist to protect corporate party from the
revelation of prejudicial facts.)

In the instant inquiry, the inquiring attorney represents the plaintiff in a lawsuit
against a corporate defendant, and seeks to communicate with the corporation's former
employee who has personal knowledge regarding the presence of a toxic substance on the
corporation's premises. The Panel concludes that Rule 4.2 of the Rules of Professional
Conduct permits the inquiring attorney to communicate ex parte with the former employee
of the corporate defendant without obtaining the consent of opposing counsel. The Panel
advises the inquiring attorney that in doing so, he/she must abide by other ethical
obligations imposed by the Rules.