Can a lawyer talk directly, without opposing counsel's consent, to a former managerial employee of an opposing organization?

Plain-English summary

The committee was asked whether a lawyer may have direct, ex parte contact with a former managerial-level employee of an opposing party. It answered yes: a lawyer may communicate directly with former constituents of an organization, and only communication with current constituents is prohibited by the Rules. Quoting Rule 16-402 (communication with a person represented by counsel) and its Official Comment 7, the committee emphasized that the rule prohibits contact with a constituent who supervises, directs, or regularly consults with the organization's lawyer about the matter, has authority to obligate the organization, or whose act or omission may be imputed to the organization, and that "[c]onsent of the organization's lawyer is not required for communication with a former constituent." It read the rule's present-tense reference to those "having" managerial responsibility as limiting the bar to current managers, consistent with ABA Model Rule 4.2, Comment 7, and noted a federal court (Judge Browning, citing Todd v. Montoya) had recognized the propriety of contacting former employees under Rule 16-402.

The committee qualified its conclusion in two ways. First, it cautioned the lawyer to follow Rule 16-403 when communicating with unrepresented persons, quoting ABA Formal Opinion 91-359 for the point that the lawyer must make clear the nature of the lawyer's role, including the identity of the client and the fact that the witness's former employer is an adverse party. Second, it noted that a former managerial employee may have had confidential communications with the organization's attorney while still employed, that those communications remain confidential and should not be requested, and that former managers are sometimes bound by a confidentiality agreement with the former employer; if the lawyer is aware of such an agreement, it would be improper to act in a way that causes the former employee to breach it.

In practice

Under the rule as it stood at the time of the opinion, the committee held that a lawyer may contact a former managerial employee of an opposing organization without the consent of the organization's lawyer. The opinion conditions that contact on compliance with the unrepresented-persons rule (Rule 16-403), including disclosing the lawyer's role, the client's identity, and the adverse relationship, and on not eliciting the former employer's privileged communications or causing the former employee to violate a confidentiality duty. Confirm the current text of Rules 16-402 and 16-403 before relying on this guidance.

Common questions

Q: Can a lawyer contact a former manager of the opposing company without going through its lawyer?

A: Yes. The committee concluded consent of the organization's lawyer is not required to communicate with a former constituent, because Rule 16-402 bars contact only with current constituents.

Q: What must the lawyer disclose to the former employee?

A: The committee concluded the lawyer must comply with Rule 16-403, making clear the lawyer's role, the identity of the client, and that the former employer is an adverse party.

Q: Are there limits on what the lawyer can ask the former manager?

A: Yes. The committee concluded the lawyer should not request the former employer's confidential communications with its attorney, which remain privileged, and must not cause the former employee to breach a known confidentiality agreement.

Q: Does this apply to current managerial employees too?

A: No. The committee concluded the no-contact rule still reaches current constituents who have managerial responsibility; the permission is limited to former constituents.

Background and rules framework

The opinion interpreted Rule 16-402, New Mexico's no-contact rule for represented persons (corresponding to Model Rule 4.2), through its Official Comment 7, and Rule 16-403 on dealing with unrepresented persons (Model Rule 4.3). It read the represented-person bar as confined to current constituents and located the lawyer's remaining obligations in the disclosure duties of Rule 16-403 and the confidentiality protections owed to the former employer.

Citations and references

Rules of Professional Conduct:

• Rule 16-402 (communication with person represented by counsel) and Official Comment 7; Rule 16-403 (dealing with unrepresented persons)

Cases:

• Todd v. Montoya, No. CIV 10-0106 JB/WPL, 2011 U.S. Dist. LEXIS 14435 (D.N.M. Jan. 12, 2011): propriety of communicating with former employees under Rule 16-402

Other opinions cited:

• ABA Formal Op. 91-359 (1991): contacting a former employee of an opposing corporate party

See also

• NM Ethics Op. 2002-1: Lawyer-Councilor Representing Clients in Municipal Court
• NM Ethics Op. 1990-5: Subpoena-Like Documents Not Issued by the Court

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/2011-2020/2015-01.pdf

Original opinion text

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

Ethics Advisory Opinion
From the State Bar of New Mexico's Ethics Advisory Committee

Formal Opinion: 2015-01

Topic: Lawyer's Ability to Communicate Directly with Former Managerial Employees of Opposing Party

Rules Implicated: 16-402, 16-403 NMRA

Disclaimer: The Ethics Advisory Committee of the State Bar of New Mexico ("Committee") is constituted for the purpose of advising inquiring lawyers on the application of the New Mexico Rules of Professional Conduct in effect at the time the opinion is issued (the "Rules") to the specific facts as supplied by the inquiring lawyer. The Committee does not render opinions on matters of substantive law. Lawyers are cautioned that should the Rules subsequently be revised or different facts be presented, a different conclusion may be reached by the Committee. The Committee's opinions are advisory only, and are not binding on the inquiring lawyer, the disciplinary board, or any tribunal. The statements expressed in this opinion are the consensus of the Committee members who considered the issue.

Question Presented: May a lawyer have direct (ex parte) contact with a former managerial-level employee of an opposing party?

Summary Answer: Yes, a lawyer may communicate directly with former constituents of an organization; only communication with current constituents is prohibited by the Rules.

Analysis:

Rule 16-402, Communication with person represented by counsel. It 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. Except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with a person whose acts or omissions in connection with the matter being represented may be imputed to the organization for purposes of civil or criminal liability, or whose statement may constitute an admission on the part of the organization, partnership or entity itself is represented by counsel.

The Committee notes that this rule is dated in the present-tense, prohibiting communication only with those managerial personnel "having" such responsibility on behalf of the organization. Official Comment 7 to the Rule states in part:

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. (emphasis added)

This statement is consistent with, and modeled after, the ABA Model Rules, Model Rule 4.2, Comment 7. It is also noted that United States Federal District Court Judge James Browning has recognized in at least one Memorandum Opinion the propriety of communicating with former employees under Rule 16-402 NMRA. See Todd v. Montoya, No. CIV 10-0106 JB/WPL, 2011 U.S. Dist. LEXIS 14435 (D.N.M. Jan. 12, 2011).

While the Committee agrees that such communication is permissible, it does caution the attorney to follow the guidelines in Rule 16-403 when communicating with unrepresented parties. As the ABA noted in its Formal Opinion 91-359 (1991):

The lawyer should also punctiliously comply with the requirements of Rule 4.3, which addresses a lawyer's dealings with unrepresented persons. That rule, insofar as pertinent here, requires that the lawyer contacting a former employee of an opposing corporate party make clear the nature of the lawyer's role in the matter giving occasion for the contact, including the identity of the lawyer's client and the fact that the witness's former employer is an adverse party.

Finally, it is noted that while still employed, a former managerial employee may have had confidential communications with the organization's attorney and that those communications remain confidential and should not be requested from the former employee. It is also not uncommon for former managers to be contractually constrained by a confidentiality agreement with their former employer. If the lawyer is aware of the existence of confidentiality agreement, it would be improper to act in a way to cause the former managerial employee to breach the agreement.

Conclusion: For the reasons set forth above, the Committee concludes that a lawyer may contact former managerial employees of an opposing party, though he or she should be certain those communications comply with the rules for communicating with unrepresented persons and include full disclosure of his or her role in relation to the former employer. The lawyer must not act in a way that would cause the former managerial employee to violate any duty of confidentiality that applies to the matter at hand.