Can a lawyer contact a former employee of a represented corporate party without the company's lawyer's consent?

Plain-English summary

Opinion 04-04 addresses litigation to enforce an oral contract a corporate defendant's former employee allegedly made on the corporation's behalf. The former employee was not a member of the "control group" but had authority to enter contracts and is not separately represented. The question is whether the plaintiff's lawyer may contact the ex-employee without the consent of the corporation's lawyer. The Committee concludes the contact is not unethical (paragraphs 1-3).

The Committee follows ABA Formal Opinion 91-359, which held that Model Rule 4.2 does not bar contact with former employees of a represented organization, and the Utah federal decision Shearson Lehman Bros., Inc. v. Wasatch Bank, which reached the same result when Utah's Rule 4.2 mirrored the Model Rule (paragraphs 4-5). It then considers whether Utah's 1996 and 1999 amendments, which added Rule 4.2(c) on organizations and a "control group" definition, change the analysis (paragraphs 6-7).

The Committee concludes they do not. Rule 4.2(c)(1)(B)(i) speaks only of a "current member of the control group," and the Committee reads the parallel provisions on organizational "representatives" in (ii) and (iii) to apply only to current representatives as well. The Comment to Rule 4.2 confirms that, in general, a lawyer may interview a former employee of an organization without the organization's consent (paragraphs 8-10). The Committee cautions that nothing in the opinion relieves the lawyer of other duties governing contact with unrepresented persons and potential witnesses, citing Rules 3.4, 4.1, 4.3, 4.4, and 8.4 (paragraph 10).

In practice

The opinion holds that, under Utah Rule 4.2 as amended in 1996 and 1999, contacting an unrepresented former employee of a represented organization is not barred, because Rule 4.2(c)'s coverage of an organization's control-group members and representatives is limited to current persons, and the Comment states a lawyer may generally interview a former employee without the organization's consent (paragraphs 8-10). The opinion holds the former employee's authority to make contracts while employed does not change the result, because the rule turns on current status. It expressly preserves the lawyer's other duties when dealing with unrepresented persons, citing Rules 3.4, 4.1, 4.3, 4.4, and 8.4 (paragraph 10). Because the opinion issued in 2004 and turns on a specific version of Utah Rule 4.2, confirm the current text of Rule 4.2 before relying on the specific holding here.

Common questions

Q: Can plaintiff's counsel interview a former employee of the corporate defendant without the company's lawyer's consent?

A: Yes. The opinion concludes Rule 4.2 does not bar the unauthorized contact, because the rule's coverage of an organization's people is limited to current control-group members and current representatives (paragraphs 2, 10).

Q: Does it matter that the former employee had authority to make contracts while employed?

A: No. The opinion reads Rule 4.2(c)(1)(B)(i)-(iii) to reach only current control-group members and current representatives, so a former employee's past contracting authority does not bring the contact within Rule 4.2 (paragraphs 8, 10).

Q: Are there any limits on contacting the former employee?

A: Yes. The opinion stresses that other rules still apply, citing Rules 3.4 (fairness to opposing party and counsel), 4.1 (truthfulness), 4.3 (dealing with unrepresented persons), 4.4 (rights of third persons), and 8.4 (misconduct) (paragraph 10).

Q: What did Utah courts say about this?

A: In Shearson Lehman Bros., Inc. v. Wasatch Bank, the Utah federal court followed the ABA's reading of Rule 4.2 and held the rule does not prohibit ex parte contact with former employees of a represented organizational party (paragraph 5).

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 4.2 (communication with a represented person, Model Rule 4.2), as amended in 1996 and 1999 to add Rule 4.2(c) addressing organizations as represented persons and to define the "control group." It relies on ABA Formal Opinion 91-359 and the federal decision in Shearson Lehman Bros., and gives weight to the Comment to Rule 4.2 and the Preamble's statement that comments guide interpretation while the text controls.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Utah Rule 4.2, 4.2(c) (communication with a represented organization; control group)
• Model Rules 3.4, 4.1, 4.3, 4.4, 8.4 / Utah Rules 3.4, 4.1, 4.3, 4.4, 8.4 (other duties preserved)

Cases:

• Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), Rule 4.2 does not prohibit ex parte contact with a represented organization's former employees

Other opinions cited:

• ABA Formal Op. 91-359 (1991): Model Rule 4.2 does not bar contact with an unrepresented former employee of an adverse corporate party

See also

• ABA Formal Op. 91-359: Contact With a Former Employee of an Adverse Corporate Party
• ABA Formal Op. 95-396: Communications With Represented Persons
• Alabama Op. 1992-12: Contacting a Former Employee of an Opposing Party

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2004-04/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2004-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah Ethics Opinions 2004. 04-04. USB EAOC Opinion No. 04-04 UTAH STATE BAR Ethics Advisory Opinion Committee Opinion No. 04-04 Approved August 25, 2004

1 Issue: In litigation to enforce an oral contract allegedly made by a corporate defendant's former employee on behalf of the corporation, where the former employee was not a member of the control group, may the plaintiff's attorney contact the ex-employee without the consent of the corporate defendant's attorney?

2 Answer: The contact with the former employee is not unethical. Utah Rules of Professional Conduct 4.2 (2004) does not bar a lawyer's unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances not applicable to this opinion.

3 Facts: A corporate defendant is represented by a lawyer in the defense of a claim based on an oral agreement allegedly made by a former employee of the corporate defendant while employed by the corporate defendant. The former employee was not a member of the "control group" as this term is defined in Utah Rules of Professional Conduct 4.2(c) (2) (2004), but the former employee did have authority to enter into contracts. The former employee is not separately represented by legal counsel with respect to the matter. We are asked whether the lawyer representing the corporate defendant represents the former employee with respect to the matter under Rule 4.2(c)(1)(B)(iii), thereby precluding plaintiff's counsel from communicating

with the former employee with respect to the matter without complying with Rule 4.2(a).

4 Analysis: In 1991, the ABA's Committee on Ethics and

Professional Responsibility addressed whether Model Rule

4.2 limits contacts with former employees. In ABA Formal

Opinion 91-359 (1991), the ABA Committee concluded it

does not. In pertinentpart, the opinion provides:

While the Committee recognizes that persuasive policy

arguments can be and have been made for extending the

ambit of Model Rule 4.2 to cover some former corporate

employers [sic], the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended. Especially

where, as here, the effect of the Rule is to inhibit the acquisition of information about one's case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation.

Accordingly, it is the opinion of the Committee that a lawyer representing a client in a matter adverse to a

corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer.

5 The only Utah court to have carefully considered this issue followed the ABA's interpretation of Model Rule 4.2 at a time when Utah Rules of Professional Conduct 4.2 mirrored the Model Rule. In Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), plaintiff's counsel sought to interview 24 former bank tellers regarding bank practices during the time an employee allegedly fraudulently endorsed checks. The court held:

Today this court joins the ranks of those which have construed Rule 4.2 consistently with the position taken by the ABA Committee on Ethics and Professional Responsibility. Under this court's rules of practice, Utah Rule of Professional Conduct 4.2 as well as ABA Model Rule 4.2 do not prohibit ex parte contact with the former employees of an organizational party that is represented by counsel.

6 Utah Rules of Professional Conduct 4.2 was amended in 1996 and 1999 and now differs considerably from Model Rule 4.2. The only remaining issue, then, is whether Utah's substantial revision of Rule 4.2 affects the foregoing interpretation.

7 The 1999 revisions to Rule 4.2 included the addition of Rule 4.2(c), which provides in relevant part as follows:

(c) Organizations as Represented Persons

(1) When the represented "person" is an organization, an

individual is "represented" by counsel for the organization

if the individual is not separately represented with respect to

the subject matter of the communication, and...

(B) with respect to a communication by a lawyer in any

other matter [a matter not involving a communication by a

government lawyer in a civil or criminal law enforcement

matter], is known by the lawyer to be

(i) a current member of the control group of the represented

organization; or

(ii) a representative of the organization whose acts or omissions in the matter may be imputed to the organization under applicable law; or

(iii) a representative of the organization whose statements under applicable rules of evidence would have the effect of binding the organization with respect to proof of the matter.

Rule 4.2 (c) provides that counsel for an organization

represents members of the "control group" of the organization (1) and under specified limited circumstances "a representative of an organization", if such persons are not separately represented in the matter.

8 The language of Rule 4.2 (c)(1)(B)(i) specifically pertains only to a "current member of the control group" (emphasis added). While Rules 4.2 (c)(1)(B)(ii) and 4.2 (c)(1)(B)(iii) do not specifically reference a current "representative of the organization", the Committee concludes that this is the proper interpretation of Rule 4.2. The Comment to Rule 4.2 removes any doubt about the intent of the revision on this issue. The Comment provides:

"The purpose of this Rule is to foster and protect legitimate attorney-client relationships. It seeks to guard against inequities that exist when a lawyer speaks to an untrained lay person. The Rule should not, however, be used as a vehicle to thwart appropriate contact between lawyers and lay persons."

"In general, however, a lawyer may, consistent with this Rule, interview a former employee of an organization without consent of the organization." (2)

9 The Comments to the Rules of Professional Conduct carry considerable weight. The Utah Supreme Court adopted the Comment when it adopted Rule 4.2, most recently when Rule 4.2 was amended on September 3, 1999. Further, the Preamble to the Rules states: "The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. . . . The Comments are intended as guides to interpretation, but the text of the Rule is authoritative."

10 The "control group" for purposes of Rule 4.2.(c)(1)(B)(i) includes any "current employee or official who is known to be participating as a principal decision maker in the determination of the organization's legal position in the matter" (emphasis added). The Comment to Rule 4.2 explains that "current employee" in the context of Rule 4.2(c)(1)(B)(i) includes those "who return to the company's payroll or are specifically retained for compensation by the organization to participate as principal decisionmakers for a particular matter." (3) The Committee finds this Comment to be equally applicable to Rules 4.2(c)(1)(B)(ii) and 4.2(c)(1)(B)(iii). The former employee described in the

request for opinion does not fall within this interpretative guide. Accordingly, we conclude that Rule 4.2 does not bar the unauthorized contact by plaintiff's counsel with the former employee. Of course, nothing in this opinion relieves an attorney of the duty to comply with other ethical rules governing contact with unrepresented persons and potential witnesses. See, e.g., Rules 3.4 (fairness to opposing party and counsel); 4.1 (truthfulness in statements to others); Rule 4.3 (dealing with unrepresented person); Rule 4.4 (respect for rights of third persons); Rule 8.4

(misconduct).

FOOTNOTES

(1) The "control group" is defined in Utah Rules of Professional Conduct 4.2 (c)(2), as follows:

The term "control group" means the following persons: (A) the chief executive officer, chief operating officer, chief financial officer, and chief legal officer of the organization; and (B) to the extent not encompassed by the following, the chair of the organization's governing body, president, treasurer, and secretary, and a vice-president or vice-chair who is in charge of a principle business unit, division, or function (such as sales administration, or finance) or performs a major policy-making function for the organization and (C) any other current employee or officer who is known to be participating as a principal decision maker in the determination of the organization's legal position in the matter.

(2) It bears noting that although Rule 4.2 was substantially amended in 1999, this sentence limiting the Rule's general application to current employees was not.

(3) Utah Rules of Professional Conduct 4.2 Comment.