Can a plaintiff's lawyer interview a corporate defendant's current employees about the events in the lawsuit without the corporation's lawyer's consent?

Plain-English summary

A plaintiff sued a defendant corporation for personal injury allegedly caused by the negligence of the corporation's employees acting in the course of their employment. No individual employee was named as a defendant. After the corporation appeared and answered through its attorney, the plaintiff's attorney (personally or through employees or agents) contacted present employees of the corporation to question them about matters within the scope of their employment that were the subject of the suit.

The Committee analyzed the question under DR 7-104(A)(1), which bars a lawyer, during representation, from communicating about the subject of the representation with a party the lawyer knows to be represented by counsel, absent that counsel's consent or legal authorization. It traced two prior opinions: Opinion 17 (1948) allowed interviewing a witness who is an employee of a party if the lawyer fully discloses his connection with the litigation and the purpose of the interview; Opinion 342 (1968) qualified that by treating two categories of employees as parties, namely the employee whose acts or omissions are the basis of the defendant's liability, and an officer or managing employee with authority to bind the corporation.

The Committee read Opinion 342 to mean the prohibition applies if either condition is met (not only if both are). It concluded that the plaintiff's lawyer may not communicate with a corporate defendant's employee without opposing counsel's consent where (1) the employee is an officer or managing employee, or (2) the employee's conduct is the basis of the litigation. An employee who is neither a managing employee nor one whose conduct is at issue may be interviewed, provided the lawyer fully discloses his connection with the suit and explains the purpose of the interview.

Currency note

This opinion was issued in 1988, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, including the comprehensive 2021 revisions adopted by Texas Supreme Court order, and Texas never adopted the ABA's Ethics 2000 framework. Texas Rule 4.02 now governs communication with represented persons and defines the represented organization's constituents who may not be contacted. Subsequent rule changes 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 plaintiff's lawyer interview a corporate defendant's current employees without the company's lawyer's consent?

A: The Committee concluded it depends on the employee. Without opposing counsel's consent, the lawyer may not contact an officer or managing employee, or an employee whose act or omission is the basis of the suit.

Q: Which employees can be interviewed without consent?

A: Per the opinion, an employee who is neither an officer or managing employee nor one whose conduct is the subject of the controversy may be interviewed, if the lawyer fully discloses his connection with the suit and explains the purpose of the interview.

Q: Does the prohibition require both that the employee be a manager and that his conduct be at issue?

A: No. The Committee read Opinion 342 so that the prohibition applies if either condition exists, not only if both are met.

Background and rules framework

The opinion interprets DR 7-104(A)(1) of the former Texas Code of Professional Responsibility (communicating with a represented party; analogous to ABA Model Rule 4.2). It builds on prior Texas Opinions 17 (1948) and 342 (1968) to define which corporate employees count as the represented "party" for purposes of the no-contact rule: officers and managing employees with authority to bind the corporation, and employees whose acts or omissions are the basis of the claimed liability.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• DR 7-104(A)(1), Texas Code of Professional Responsibility (communicating with one of adverse interest)

Other opinions cited:

• Texas Ethics Opinion 17 (December 1948): interviewing a party's employee-witness with full disclosure of the lawyer's connection and purpose
• Texas Ethics Opinion 342 (March 1968): treating an officer/managing employee, or the employee whose conduct is at issue, as a party

See also

• TX Ethics Op. 474: Contacting a City Council Member of a Represented Municipality
• TX Ethics Op. 492: Rule 4.02 Communication With City Employees in Grievances
• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-461/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_461.pdf

Original opinion text

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

QUESTION PRESENTED

Does the Texas Code of Professional Responsibility prohibit the plaintiff's attorney from questioning present employees of a corporate defendant concerning matters within the scope of their employment that are the subject of the pending litigation?

STATEMENT OF FACTS

The plaintiff brought suit in a state court in Texas against a defendant corporation, seeking damages for personal injury alleged to have been caused by negligent acts committed by employees of the defendant in the course and scope of their employment. No individual employee was named as a defendant.

After the defendant appeared and answered through its attorney, the plaintiff's attorney, personally or through his employees or agents, contacted present employees of the defendant to question them concerning matters within the course and scope of their employment which are the subject of the suit.

DISCUSSION

Answer to the question presented is governed by DR 7-104, the pertinent portion of which reads as follows: "DR 7-104. Communicating With One of Adverse Interest. (A) During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

Opinion 17 (December, 1948) held that Canon 9 then in effect did not preclude an attorney from interviewing a potential witness, other than a party to the suit, even though the witness may be an employee of a party to the suit, if the attorney makes a full disclosure of his connection with the litigation and explains the purpose of the interview. That opinion was qualified, however, by Opinion 342 (March, 1968) with the following modification: (1) If the employee being interviewed is the person for whose acts or omissions the defendant is sought to be held liable, such employee should be considered as a party and he should not be interviewed without the consent of the attorney for the corporate defendant by whom he was employed. (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.

We do not read prior Opinion 342 as prohibiting communication by a lawyer with the employee of a corporate defendant who is represented by an attorney if, and only if, both conditions set out in Opinion 342 are met. If either condition exists, the prohibition applies.

CONCLUSION

During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with the employee of an adverse party without consent of opposing counsel if (1) the employee is an officer or managing employee or (2) the conduct (act or omission) of the employee is the basis of the litigation. If the employee with whom communication is made is not an officer or managing employee of the corporate defendant and the conduct by the employee is not the subject of the controversy, he may be interviewed by an attorney or a party opposing the corporation provided the attorney makes a full disclosure of his connection with the suit and explains the purpose of the interview.

Tex. Comm. On Professional Ethics, Op. 461 (1988)