Can a lawyer interview or take a statement from an employee of an adverse corporate party without opposing counsel's consent?

Plain-English summary

A plaintiff sued a defendant corporation. The plaintiff's attorney, or his investigator, then interviewed and obtained a statement from one of the defendant's employees without the consent of the defendant or its counsel. The question was whether that conduct violated Canon 9.

The Committee began with the settled point that Texas Canon 9 and ABA Canon 9 bar a lawyer from communicating about the subject of the controversy with a party represented by counsel, so it would be unethical for a lawyer, personally or through investigators, to interview and take a statement from the adverse party itself without that party's counsel's consent (citing Opinion 117, September 1955). But the Committee held those canons do not prohibit communications with employees of an adverse party, approving Opinion 17 (December 1948) and ABA Opinion 117 (August 1934): a lawyer may interview an employee of a party provided he makes full disclosure of his connection with the suit and explains the purpose of the interview.

The Committee approved those earlier opinions with two modifications. First, if the employee being interviewed is the person for whose acts or omissions the defendant is sought to be held liable, that employee should be considered a "party" within the meaning of Canon 9. Second, if the employee is an officer or managing employee with authority to bind the corporate defendant, he should likewise be considered a "party" (citing Drinker, Legal Ethics, pages 85 and 201). The vote was 6-2; the two dissenting members took the view that because a corporation can act only through its officers and employees, an interview with any employee is an interview with the party defendant and is therefore prohibited by Canon 9 without opposing counsel's consent.

Currency note

This opinion was issued in 1968, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer interview a low-level employee of an opposing corporation without its counsel's consent?

A: The Committee said yes, provided the lawyer makes full disclosure of his connection with the suit and explains the purpose of the interview, and the employee is neither one who can bind the corporation nor the one whose conduct gave rise to the controversy.

Q: Which employees count as the "party" who cannot be contacted?

A: The employee whose acts or omissions are the basis for the defendant's liability, and any officer or managing employee with authority to bind the corporation, are each treated as a "party" under Canon 9.

Q: Was the Committee unanimous?

A: No. The vote was 6-2; the two dissenters would have treated an interview with any employee as an interview with the corporate party itself, prohibited without consent.

Background and rules framework

The opinion interprets former Texas Canon 9 and ABA Canon 9 (a lawyer not communicating about the controversy with a represented party). The modern analog is ABA Model Rule 4.2 (communication with a person represented by counsel), whose comment addresses which constituents of a represented organization are off limits.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons), as the modern analog
• Texas Canon 9 and ABA Canon 9 (former canons)

Other opinions cited:

• Texas Opinion 117 (September 1955); Texas Opinion 17 (December 1948)
• ABA Opinion 117 (August 1934)

Other references:

• Drinker, Legal Ethics, pages 85 and 201

See also

• TX Ethics Op. 352: Interviewing Represented Co-Defendants Without Consent
• TX Ethics Op. 355: Advising a Represented Opposing Party at a Deposition
• TX Ethics Op. 358: Copying the Opposing Party on Letters to Opposing Counsel

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-342/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_342.pdf

Original opinion text

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

QUESTION PRESENTED

Plaintiff files a damage suit against defendant corporation. Thereafter plaintiff's attorney, or his investigator, interviews and obtains a statement from defendant's employee without consent of defendant or defendant's counsel. Is such conduct a violation of Canon 9?

23 Baylor L. Rev. 877 (1972)

COMMUNICATIONS WITH ADVERSE PARTY - INTERVIEWING WITNESSES AND OBTAINING STATEMENTS
It is not unethical for an attorney to interview and take statements from employees of an adverse party without consent of opposing counsel provided a full disclosure is made and provided further that the employee is not an officer or managing employee of the party and is not the person whose conduct gives rise to the controversy.

Canon 9. ABA Canon 9.

Both Texas Canon 9 and ABA Canon 9 provide that an attorney should not in any way communicate upon the subject of controversy with a party represented by counsel and it would, of course, be unethical for an attorney, either personally or through his investigators, to interview and obtain a statement from the adverse party without consent of his counsel. Opinion 117 (September, 1955). These Canons, however, do not prohibit communications with employees of an adverse party and this Committee held, in Opinion 17 (December, 1948), that an attorney may interview an employee of a party provided the attorney makes a full disclosure of his connection with the suit and explains the purpose of the interview. To the same effect is ABA Opinion 117 (August, 1934). We approve those opinions with the following modifications: (1) If the employee being interviewed is the person for whose acts or omissions the defendant is sought of be held liable, such employee should be considered as a party within the meaning of Canon 9. (2) If the employee being interviewed is an officer or managing employee with authority to bind the corporate defendant he should likewise be considered a party within the meaning of Canon 9. See Drinker, Legal Ethics, pages 85 and 201.

Two members of the Committee are of the opinion that since a corporation can act only through its officers and employees, an interview with any employee would be an interview with the party defendant and therefore prohibited by Canon 9 unless consent of opposing counsel is obtained. (6-2.)

Tex. Comm. On Professional Ethics, Op. 342 (1968)