Can a corporation's lawyer tell a former employee that he represents her individually and instruct her not to talk to opposing counsel?

Plain-English summary

A plaintiff (A) sued a corporation (B) for medical negligence and fraud. A's attorney tried to interview X, a former employee of B with relevant information, but X said B's attorney had already contacted her, advised her not to speak with A's attorney, and told her he represented her individually as well as B. The committee was asked whether it was ethical for B's attorney to contact B's former employees, tell them he represents them individually, and instruct them not to speak with A's attorney.

The controlling rule was DR 7-103(A)(1), which barred a lawyer from communicating about the subject of a representation with a party known to be represented by counsel, absent that counsel's consent or legal authorization. The committee restated its prior view (LE Op. 533, 905) that an attorney may communicate directly with former employees of an adverse party unless aware that a former employee is represented by counsel. The pivotal question was therefore whether B's former employees were actually represented, and the committee noted (EC 5-18) that a corporation's attorney represents the corporation, not individual employees.

The committee reasoned that former employees have a right to choose their own counsel, and the facts did not show that X had freely chosen B's attorney. Because X had not engaged B's attorney, he could not claim to represent her, and could not do so for any former employee who had not retained him. The committee concluded under the former Code that B's attorney could not advise X that he represented her individually nor instruct her not to speak with A's attorney (LE Op. 1235, 1281, 1426). As to X or any other unrepresented former employee, B's attorney could only advise that person to secure counsel, since the person's interests might conflict with B's (DR 7-103(A)(2)). The later committee note says Rule 3.4(g) allows a lawyer to request that former employees of a corporate client refrain from voluntarily giving relevant information to another party in some circumstances.

Currency note

This opinion was issued in 1994, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The later committee note says Rule 3.4(g) allows a lawyer to request that former employees of a corporate client refrain from voluntarily giving relevant information in some circumstances. 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 company's lawyer claim to also represent the company's former employees?

A: Under this 1994 opinion, only if the former employee actually engages him. The committee concluded that, because a corporation's lawyer represents the entity and not individual employees, he could not claim to represent a former employee who had not retained him.

Q: Can that lawyer instruct a former employee not to talk to opposing counsel?

A: No, not where the lawyer does not represent her. The committee held that because the former employee had not engaged B's attorney, he could not instruct her not to speak with the opposing party's attorney.

Q: What can the corporation's lawyer say to an unrepresented former employee?

A: The committee said he may only advise the person to secure counsel, since the former employee's interests may conflict with the corporation's, under DR 7-103(A)(2).

Background and rules framework

The opinion interpreted former Virginia DR 7-103(A)(1) (no communication with a represented party absent counsel's consent) and DR 7-103(A)(2) (advising an unrepresented person to obtain counsel where interests may conflict), with EC 5-18 (a corporate lawyer represents the entity, not individual employees). The represented-person rule is now carried forward in Virginia Rule 4.2 and ABA Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-103(A)(1), (A)(2); EC 5-18 (Code of Professional Responsibility)
• ABA Model Rule 4.2 (communication with represented persons)

Other opinions cited:

• Virginia LE Op. 533, 905: an attorney may communicate directly with former employees of an adverse party unless they are represented.
• Virginia LE Op. 1235, 1281, 1426: a lawyer cannot claim to represent, or instruct, persons who have not engaged him.

See also

• VA LEO 1670: Contacting a Former Employee
• VA LEO 1749: Questioning a Former Employee
• VA LEO 1752: Contacting a Represented Party

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1589.pdf

Original opinion text

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

Committee Opinion
April 11, 1994
LEGAL ETHICS OPINION 1589

COMMUNICATION WITH ADVERSE
PARTIES: ATTORNEY CONTACTING
FORMER EMPLOYEE OF ADVERSE
CORPORATE PARTY WHEN
CORPORATE ATTORNEY CLAIMS TO
REPRESENT FORMER EMPLOYEE
INDIVIDUALLY.

You have presented a hypothetical situation in which A sues B, a corporation, for medical negligence and fraud. You indicate that A's attorney contacts and attempts to interview B's former employee, X, who has information relevant to A's claims against B. However, X states that B's attorney has already contacted her and advised her not to speak with A's attorney. Also, B's attorney has told X that he represents X individually as well as B. You have asked the committee to opine whether, under the facts of the inquiry, it is ethical for B's attorney to contact former employees of B, advise them that he represents them individually, and instruct them not to speak with A's attorney. The appropriate and controlling Disciplinary Rule related to your inquiry is DR:7103(A)(1), which provides that a lawyer shall not 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. The committee has previously opined that an attorney may communicate directly with former employees of an adverse party, unless the attorney is aware that any of the former employees is represented by counsel. See LE Op. 533, LE Op. 905. The question, then, is whether B's former employees are represented by counsel? It is well-established that a corporation's attorney represents, and owes his allegiance to, the corporation and not individual corporate employees. See EC:5-18. As former employees, X and others have a right to choose their own counsel. The facts do not indicate that the former employees have freely chosen counsel. Instead, the facts indicate that B's attorney contacted X, advised her not to speak with A's attorney, and advised her that he represents her as well as B. Since X did not choose B's attorney as counsel, B's attorney cannot claim to represent her absent her agreement. B's attorney cannot claim to represent any of the former employees if they did not engage him to do so. Since the facts do not indicate that X agreed to representation by B's attorney, the committee is of the view that B's attorney cannot advise X that he represents her individually nor may he instruct X not to speak with A's attorney. See LE Op. 1235, LE Op. 1281, LE Op. 1426. As to X, or any other unrepresented former employee, B's

Committee Opinion
April 11, 1994
attorney may only advise that person to secure counsel, since that person's interests may be in conflict with the interests of his client, B. See DR:7-103(A)(2). Committee Opinion April 11, 1994 Legal Ethics Committee Notes. – Rule 3.4(g) allows a lawyer to request that former employees of a corporate client “refrain from voluntarily giving relevant information to another part” under certain circumstances.