Can corporate counsel block opposing counsel from interviewing employee fact-witnesses by asserting that counsel represents all of them?

Plain-English summary

Opinion 04-06 addresses a tort action naming a corporation (and an outside individual) as a defendant, where plaintiff's counsel wants to interview corporate employees who are fact-witnesses and are not themselves alleged to be negligent. Corporate counsel tells plaintiff's counsel that counsel represents all corporate employees, current and former, so they may not be interviewed without violating Rule 4.2. The Committee analyzes whether this assertion is proper under Rules 1.7, 4.2, and 3.4 (Issue and Analysis sections).

Under Rule 4.2(c), opposing counsel may not contact a current control-group member, or a current constituent whose acts or omissions may be imputed to the corporation, or whose statements would bind it, regardless of any individualized attorney-client relationship. Outside those categories, the question is whether the employee is genuinely represented. Rule 3.4(f) permits corporate counsel to request that a current employee whose interests will not be adversely affected refrain from voluntarily speaking with opposing counsel, but counsel may not otherwise obstruct access to employees who are free to decide whether to talk (Analysis section).

The Committee concludes corporate counsel may undertake to represent an employee-witness only if there is no actual conflict under Rule 1.7(a) and counsel fully complies with Rule 1.7(b), meaning all clients (the corporation and each employee-witness) are informed of the implications of common representation and consent, including the possibility of withdrawal if a conflict later emerges. If no genuine attorney-client relationship has formed, asserting one to block access violates Rule 3.4 (obstructing access to witnesses) and Rule 4.1 (a false statement of material fact). The opinion illustrates when common representation is permissible (all witnesses agree the alleged act never occurred) versus impermissible (witnesses give conflicting accounts), and notes opposing counsel may ask a court to resolve access disputes (Analysis section).

In practice

The opinion holds that, under the Utah Rules as they stood in 2004, corporate counsel may prevent opposing counsel from interviewing employee fact-witnesses only where a genuine attorney-client relationship has formed with each witness in full compliance with Rule 1.7, including informed consent to joint representation and notice of possible withdrawal if a conflict arises (Opinion and Analysis sections). The opinion holds that, absent such a relationship, counsel may not block access by merely asserting representation, except as to current control-group members or constituents whose acts or statements bind the corporation under Rule 4.2; for other current employees, counsel may at most request under Rule 3.4(f) that those whose interests are not adversely affected refrain from speaking voluntarily. The opinion holds that falsely asserting representation to obstruct access can violate Rule 3.4 and Rule 4.1, and that former employees may not be blocked absent a current, properly formed attorney-client relationship. Because the opinion issued in 2004, confirm the current Utah rules before relying on the specific holding here.

Common questions

Q: Can corporate counsel tell opposing counsel not to interview any company employee by claiming to represent them all?

A: Not unless counsel has actually formed a proper attorney-client relationship with each one under Rule 1.7. Otherwise, blocking access by merely asserting representation can violate Rules 3.4 and 4.1; only constituents covered by Rule 4.2 are off-limits regardless (Opinion and Analysis sections).

Q: Which employees are off-limits under Rule 4.2 even without an individual representation?

A: Current control-group members, and current constituents whose acts or omissions may be imputed to the corporation or whose statements would bind it on the matter (Analysis section).

Q: Can corporate counsel ask employees not to talk to opposing counsel?

A: Under Rule 3.4(f), counsel may request a current employee whose interests will not be adversely affected to refrain from voluntarily giving information, but may not otherwise obstruct access to employees who are free to decide whether to speak (Analysis section).

Q: When can corporate counsel jointly represent the company and its employee-witnesses?

A: Only if there is no actual conflict under Rule 1.7(a) and counsel complies with Rule 1.7(b): all clients are informed of the implications of common representation, consent, and understand counsel may have to withdraw if a conflict later arises (Analysis section).

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 4.2 (communication with a represented person, including the organizational provisions of Rule 4.2(c), Model Rule 4.2), Rule 3.4(f) (a lawyer may ask a client's employee or agent to refrain from giving information only in limited circumstances, Model Rule 3.4), Rule 4.1 (truthfulness to third persons, Model Rule 4.1), and Rule 1.7 (conflicts in common representation, Model Rule 1.7). It relies on its companion Opinion 04-04 on contacting former employees and on the Utah Supreme Court's decision in Featherstone v. Schaerrer.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Utah Rule 4.2, 4.2(c) (communication with a represented organization's constituents)
• Model Rule 3.4 / Utah Rule 3.4(f) (requesting a client's employee to refrain from giving information)
• Model Rule 4.1 / Utah Rule 4.1 (false statement of material fact to a third person)
• Model Rule 1.7 / Utah Rule 1.7 (conflicts and informed consent in common representation)

Cases:

• Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001), prior Rule 4.2 barred contact with a corporation's secretary
• Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), court-permitted ex parte interviews with former employees

Other opinions cited:

• Utah Ethics Advisory Op. 04-04 (2004): contact with an unrepresented former employee of an opposing party is permitted
• Utah Ethics Advisory Op. 96-11 (1996): withdrawal required after a conflict arises in a joint representation

See also

• Utah Ethics Op. 04-04: Contacting a Represented Organization's Former Employee
• ABA Formal Op. 91-359: Contact With a Former Employee of an Adverse Corporate Party
• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2004-06/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2004-06.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. 04-06. USB EAOC Opinion No. 04-06 UTAH STATE BAR Ethics Advisory Opinion Committee Opinion 04-06 December 2, 2004

Issue: Under what circumstances is it permissible for corporate counsel to assert that counsel concurrently

represents present and former corporate employees whose

testimony is relevant to a claim and ethically preclude

opposing counsel's access to those corporate employee

witnesses?

Opinion: If corporate counsel has actually formed an attorney-client relationship with these employee-witnesses,

and has fully complied with Utah Rules of Professional

Conduct 1.7 (including obtaining informed consent from all

multiple clients to joint representation and informing them

of the possible need for withdrawal from representing any of them should an actual conflict arise), this is permissible

and opposing counsel may not interview them. However, in

the absence of such a fully formed and proper attorney-client relationship, it is improper for corporate counsel to block opposing counsel's access to other current corporate constituents, by asserting an attorney-client relationship unless these individuals were control group members, their acts could be imputed to the organization or their statement would bind the corporation with respect to the matter under Utah Rules of Professional Conduct 4.2. Similarly, it is improper to block opposing counsel's access to any former employee in the absence of a current fully formed and proper attorney-client relationship.

Facts: The tort action asserts one corporate employee and an outside individual were negligent, but names only the corporate entity (and the outside individual) as defendants. Counsel for plaintiff seeks to interview other employees who are fact witnesses and who are not alleged to be negligent. Corporate counsel informs plaintiff's counsel that s/he is representing all corporate employees (current as well as former employees) and thus plaintiff's counsel may not informally interview any of these individuals without violating Rule 4.2.

Analysis: Whether corporate counsel's actions are proper must be determined by reference

to Rule 1.7 regarding conflicts of interest, Rule 4.2 as it governs counsel's ability to interview "represented persons" in the corporate context, and Rule 3.4 as it permits corporate counsel to request that corporate employees not talk with opposing counsel.

Rule 4.2 1 provides in relevant part:

(a) General Rule. A lawyer who is representing a client in a matter 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 [other law or judicial order].

Utah's Rule 4.2 2 expressly addresses "Organizations as

Represented Persons" and defines when an individual

constituent of that organization, not separately represented,

should be considered to be "represented" by corporate

counsel. With respect to non-governmental organizations, Rule 4.2 states:

(c)(1)(B) When the represented "person" is an

organization, an individual is "represented" by counsel for

the organization if the individual is not separately

represented . . . and . . . is known by the lawyer to be

(c)(1)(B)(i) a current member of the control group of the

represented organization; or

(c)(1)(B)(ii) a representative of the organization whose acts or omissions in the matter may be imputed to the organization under applicable law; or

(c)(1)(B)(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.

Accordingly, whether or not the corporate attorney had formed an individualized attorney-client relationship with a particular corporate employee, this rule would prohibit the opposing counsel from interviewing any current member of the "control group" or any current employee whose acts or omissions would be imputed to the corporation or whose statements would be imputed to the corporation. Under these circumstances the employee would be acting and speaking for the corporation.3

Here, however, the opposing attorney posits that the employee is NOT a "person" "represented" by corporate counsel due to any of these factors, but a mere fact witness whom corporate counsel has (inexplicably in opposing counsel's view) undertaken to represent as well.

Utah Rules of Professional Conduct 3.4, "Fairness to opposing party and counsel" must also be consulted. This rule is designed to permit both counsel to have access to relevant evidence in order that the adversary system function appropriately. Under Rule 3.4(f), a lawyer ordinarily may not ask a person who is not the lawyer's client "to refrain from voluntarily giving relevant information to another party" with one exception relevant here. There is an exception to this prohibition if "[t]he person is . . . an employee or other agent of a client; and (2) [t]he lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information."4 Thus, in accordance with this rule, corporate counsel may request any current employee (including fact witnesses) whose interests will not be adversely affected to refrain from informally speaking with opposing counsel. However, corporate counsel may not direct opposing counsel not to contact corporate employees who have the right to talk or to decline to talk to opposing counsel, unless, of course, these corporate employees are actually individually represented by corporate counsel.

The situation posits corporate counsel taking one further step, making all employees who have any information about the issue individual clients, and thus conclusively preventing opposing counsel from informally contacting any of them. The first question in analyzing whether this strategy is ethical is whether these employee-fact-witnesses have actually formed an individual attorney-client relationship with corporate counsel. If they have not, corporate counsel would be guilty of violating Rule 3.4 in unlawfully obstructing access to these witnesses and Rule 4.1 in making a false statement of material fact.5

It is permissible for corporate counsel to undertake to represent an employee opposing counsel believes is a mere fact witness provided there is no actual conflict of interest (Rule 1.7(a)) between the corporation and the employee-witness with respect to the matter and provided corporate counsel fully complies with Rule 1.7(b) regarding potential conflicts of interest. Such compliance would require that all clients (the corporation and each

employee-witness) be fully informed as to the implications

of common representation, and give consent to common

representation after such advice. The advice should include

the possibility that if a conflict of interest arises between t

corporation and the witness, counsel may be required to

withdraw from the representation entirely.6

It may be helpful to illustrate a possible scenario where common representation might be undertaken and a scenario where it should not be. Imagine allegations that the corporation has been negligent due to the acts of one employee, and the named employee, the corporation and all other employee witnesses tell counsel that the alleged negligent act never occurred. Under these circumstances,

counsel should be able to obtain informed consent to represent the corporation, the alleged negligent employee and other employee witnesses, should they all desire representation. However, if one employee witness will testify that the negligent act occurred and the employee alleged to be negligent denies the act; then clearly corporate counsel cannot represent both (and might be required to withdraw from the representation entirely if this came to light after common representation had been undertaken).

We also interpret Rule 1.7 to be consistent with Rule 3.4. If an employee's interest might be adversely affected by refraining from giving information to opposing counsel under Rule 3.4, then a conflict of interest exists such that common representation should not be permitted under Rule 1.7. For example, if the corporate employee had suffered the same discrimination as that complained of in the claim against the corporation, it would be impermissible for corporate counsel to undertake to represent this employee fact witness in the case.

While corporate counsel may certainly consult with the corporate constituent called as a witness in a deposition, this consultation is part of counsel's representation of the corporation and does not render the attorney counsel to the witness as an individual. Nor does such corporate representation block opposing counsel's ability to attempt to interview such a fact witness separate and apart from formal discovery.

Finally, we note that, in prohibiting communications with persons represented by counsel, Utah's Rule 4.2(a) provides explicit exceptions: "the lawyer . . . is authorized to do so by: . . . (2) decision . . . of a court of competent jurisdiction; (3) a prior written authorization by a court of competent jurisdiction obtained by the lawyer in good faith. . . ." Accordingly, an attorney who seeks to informally interview employees who are mere fact witnesses has the possibility of having this issue resolved by the court.7

Footnote

1. This portion of Utah Rules of Professional Conduct 4.2

(2004) is identical to ABA Model Rule 4.2 (1993). This

Committee has previously opined regarding when Rule 4.2

prohibits or permits contact with various persons in Utah he Ethics Advisory Op. No. 04-04, 2004 WL 1921150 (Utah

St. Bar) (contact with former employees of opposing party

permitted), Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar) (contact with insurance adjuster), Utah Ethics Advisory Op. No. 96-01, 1996 WL 227376 (Utah St. Bar) (contact with former plaintiffs whose claims have been settled), Utah Ethics Advisory Op. No. 95-05, 1996 WL 73351 (Utah St. Bar) (relationship to U.S. Department of Justice regulation purporting to authorize certain ex parte contacts), and Utah Ethics Advisory Op.

No. 113 (1991), 1991 WL 634794 (Utah St. Bar) (counsel for individual members of tribe communicating with Tribal Counsel). None of these opinions is determinative in this case.

2. The ABA Model Rules include these concepts in the Comment to Rule 4.2, as did Utah before the current version was adopted in 1999. See Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001) interpreting Utah's prior Rule 4.2 to prohibit contacts with the corporation's secretary given this language in the Comment to the rule.

3. This interpretation of prior Utah Rule 4.2, which included these provisions in the Comment rather than in the text of the rule itself, was adopted by the Utah Supreme Court in Featherstone v. Schearrer, 34 P.3d 194, 201 (Utah 2001).

4. Utah Rules of Professional Conduct 3.4(f)(1),(2)(2004).

5. Utah Rules of Professional Conduct 4.1(a)(2004) provides: "In the course of representing a client a lawyer shall not knowingly: (a) [m]ake a false statement of material fact or law to a third person."

6. See Utah Rules of Professional Conduct 1.9 and Utah Ethics Advisory Op. No. 96-11, 1996 WL 45138 (Utah St. Bar) (attorney appointed to represent both mother and father in an abuse/neglect proceeding must withdraw from representing either of them after a conflict of interest arises).

7. See e.g., Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (brokerage firm sought and obtained court's permission to conduct ex parte interviews with former bank employees where bank was represented by counsel).