Did North Dakota Rule 4.2 bar contact with a represented corporation's former employees?
Apply this to your situation
This page answers the general question as of 1992. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The committee was asked whether Rule 4.2's restriction on contacting employees of an opposing represented corporation also reached its former employees. The rule and its comment addressed current personnel but were silent on former employees. Citing ABA Formal Opinion 91-359, the committee declined to expand Rule 4.2 beyond its text and concluded that the restriction did not extend to former employees.
The committee nevertheless cautioned that a contacting lawyer must not induce an unrepresented former employee to reveal attorney-client communications with the former employer's counsel where the privilege belongs to the employer. Under Rule 4.3, it also said the lawyer must make clear the lawyer's position, including the client represented and that the former employer is the adverse party.
Currency note
This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.
Common questions
Q: Did Rule 4.2 itself prohibit contact with former employees?
A: No. The committee held that the rule's contact prohibition did not extend to a represented corporate party's former employees.
Q: Could the lawyer seek privileged communications from the former employee?
A: The committee cautioned against inducing disclosure of communications with the corporation's counsel when the privilege belonged to the former employer.
Q: What did the lawyer have to explain to an unrepresented former employee?
A: The lawyer had to identify the lawyer's position in the action, the client represented, and the former employer's adverse-party role.
Background and rules framework
The opinion reads the then-current North Dakota Rules 4.2, 4.3, and 4.4 alongside ABA Formal Opinion 91-359. Its holding is confined to former employees of the opposing corporation.
Citations and references
Rules of Professional Conduct:
- North Dakota Rule 4.2, contact with a represented party.
- North Dakota Rules 4.3 and 4.4, cautions concerning unrepresented persons and privileged information.
Other opinions cited:
- ABA Formal Opinion 91-359, former corporate employees under Rule 4.2.
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/92-13.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
What do the rules say today, for your facts?
This opinion is from 1992. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace