Can a lawyer defending a contractor sued by the State of Tennessee interview non-management state employees, including the State architect, without going through the Attorney General's office?

Currency note

This opinion was issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Plain-English summary

An attorney representing a general contractor sued for roof-construction damages by the State of Tennessee, ex rel. the Commissioner of the Tennessee Department of Correction, asked about interviewing non-administrative or non-management employees of the plaintiff without the plaintiff's knowledge or consent. The attorney identified specific present and former employees of the Department of Correction and the office of the State architect, including the State architect himself (by then employed by the University of Tennessee), who might have relevant knowledge from the time of the project's construction.

The opinion held that DR 7-104's prohibition against a lawyer communicating with an adverse party known to be represented by counsel does not apply to communications with an employee of the State where the State alone is the other party to the controversy, citing Vega v. Bloomsberg, 27 F. Supp. 593 (D. Mass. 1977). It added a procedural safeguard drawn from In re: FMC Corp., 430 F. Supp. 1108 (S.D. W. Va. 1977): an attorney representing a party adverse to the State should identify himself to the state employee he wishes to interrogate and should inform the employee of the controversy and the reason for the inquiry.

Common questions

Q: Can a lawyer suing or being sued by the State interview state employees directly, without going through the State's counsel?

A: Yes, for non-management employees, because the State is the party rather than an individually represented person. The opinion holds "the prohibition of DR 7-104 against an attorney communicating with an adverse party whom he knows to be represented by a lawyer does not apply to communications with an employee of the State, where the State alone is the other party to the controversy."

Q: Does the lawyer have to disclose who he is and why he's asking questions?

A: Yes. The opinion requires that the attorney "should identify himself to the State employee whom he desires to interrogate, and should inform the employee of the controversy and of the reason for his inquiry."

Background and rules framework

The opinion applied Disciplinary Rule 7-104 of the Tennessee Code of Professional Responsibility (communicating with a represented adverse party), holding it inapplicable to non-management state employees when the State itself is the party. The modern correlate is Model Rule 4.2 (communication with a person represented by counsel), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 7-104 (communicating with an adverse party represented by counsel), Tennessee Code of Professional Responsibility
• Model Rule 4.2 (communication with a person represented by counsel), modern correlate

Cases:

• Vega v. Bloomsberg, 27 F. Supp. 593 (D. Mass. 1977), DR 7-104 does not bar interviewing an unrepresented state employee where the State alone is the adverse party
• In re: FMC Corp., 430 F. Supp. 1108 (S.D. W. Va. 1977), attorney must identify himself and the purpose of the inquiry when interviewing an adverse party's employee

See also

• Tennessee Op. 83-F-46: Interviewing a Corporate Defendant's Non-Management Employees
• Tennessee Op. 83-F-46(a): Contacting a Bank's Board of Directors
• ABA Formal Op. 95-396: The No-Contact Rule (Rule 4.2)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/82-f-27

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

82-F-27 - Interviewing non-management state employees

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 82-F-27

Inquiry has been made concerning the propriety of an attorney interviewing non-administrative or non-management level employees of the plaintiff without the knowledge and consent of the plaintiff.

The attorney represents a general contractor sued for damages in connection with problems with a roof at a correctional institution. The plaintiff in the action is the State of Tennessee ex rel Commissioner of the Tennessee Department of Correction.

The inquiring attorney believes that there are various persons who were employed by the State of Tennessee at the time of the construction of the project, and shortly thereafter, who possibly have knowledge of facts and circumstances which may be relevant to the trial of the action. These are persons affiliated with the Department of Correction or with the office of the State architect.

The attorney specifically wishes to talk with certain present and former employees of the Department of Correction and the office of the State architect, including the State architect himself who now is employed by the University of Tennessee.

The prohibition of DR 7-104 against an attorney communicating with an adverse party whom he knows to be represented by a lawyer does not apply to communications with an employee of the State, where the State alone is the other party to the controversy. See Vega v. Bloomsberg, 27 F.Supp. 593 (D.C. Mass. 1977). An attorney representing a party adverse to the State should identify himself to the State employee whom he desires to interrogate, and should inform the employee of the controversy and of the reason for his inquiry. See In re: FMC Corp., 430 F. Supp. 1108 (D.C. W Va. 1977).

This 22nd day of February, 1982.

ETHICS COMMITTEE:

W. H. Lassiter, Chairman

W. J. Flippin

George Morrow

APPROVED AND ADOPTED BY THE BOARD