Can a lawyer contact, ex parte, a former officer or control-group employee of an adverse corporation to ask what the person remembers?

Plain-English summary

The inquiry involved a dispute over the right to goods. A defendant's attorney wanted to interview "Officer," a person who had signed documents said to bear on whether the plaintiff released a lien. Officer no longer worked for the plaintiff and was not represented by counsel. The committee was asked whether the defendant's attorney could communicate ex parte with Officer about matters at issue in a pending Virginia Circuit Court case.

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 without that counsel's consent or legal authorization. The committee restated its "control group" / "alter ego" test from prior opinions: a current employee who, because of status or position, might bind the corporation by acts or admissions (drawing on Upjohn Co. v. United States) must be reached only through formal discovery, while a current employee outside the control group may be contacted directly after the lawyer discloses the adversary role. An officer, the committee noted, would likely be in the control group.

The committee concluded that termination of employment was the pivotal fact. Once a control-group employee separates from the corporate employer, voluntarily or involuntarily, the restriction on direct contact ceases because the former employee no longer speaks for the corporation or binds it by acts or admissions. Citing LE Op. 533, 905, and 1589, the committee held it ethically permissible to communicate directly with former officers, directors, and employees of an adverse party unless the lawyer is aware the former employee is represented by counsel. Counsel for the corporation represents the entity, not individual employees (EC 5-18), and when contacting an unrepresented person the lawyer should give no advice except to advise the person to obtain a lawyer (EC 7-15).

The committee acknowledged that some Virginia circuit and federal courts had read DR 7-103(A)(1) more broadly (a Model Rules approach reaching employees whose acts or statements could make the employer vicariously liable), but it applied the rule Virginia had adopted and left specific legal rulings to the trial courts. It added that even under Model Rule 4.2, ex parte contact with former employees, including former control-group members, would not be prohibited (ABA Formal Op. 91-359).

Currency note

This opinion was issued in 1996, 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. 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 former employee of an opposing company without going through the company's counsel?

A: Under this 1996 opinion, yes. The committee concluded that once a control-group employee separates from the corporation, the bar on ex parte contact ends, so the lawyer may speak with the former employee directly unless the lawyer knows that person is represented by counsel.

Q: Does it matter that the former employee was an officer or part of the "control group"?

A: No. The committee held that termination is the pivotal fact: even a former officer or control-group member no longer speaks for or binds the corporation, so the prior restriction on contacting such persons no longer applies once they have left.

Q: What limits apply when contacting an unrepresented former employee?

A: Citing EC 7-15, the committee said the lawyer should give the former employee no advice except to advise the person to obtain a lawyer, and counsel for the corporation represents the entity, not the individual.

Background and rules framework

The opinion was decided under former Virginia DR 7-103(A)(1) (no communication with a represented party absent counsel's consent), with EC 5-18 (corporate counsel represents the entity, not individual employees) and EC 7-15 (limits on advising unrepresented persons). The committee compared the provision to ABA Model Rule 4.2 and its comment on organizational parties, the analog now carried forward in Virginia Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-103(A)(1); EC 5-18; EC 7-15 (Code of Professional Responsibility)
• ABA Model Rule 4.2 (communication with represented persons; organizational-party comment)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383 (1981), control-group / alter-ego analysis for corporate employees.
• Queensberry v. Norfolk & Western Ry., 157 F.R.D. 21 (E.D. Va. 1993), broader Model Rules approach to ex parte employee contact.

Other opinions cited:

• Virginia LE Op. 347, 530, 801, 1504: control-group test for ex parte contact with current corporate employees.
• Virginia LE Op. 533, 905, 1589: permissible to contact former officers, directors, and employees of an adverse party.
• ABA Formal Op. 91-359 (1991): Model Rule 4.2 does not bar contact with former employees.

See also

• VA LEO 1749: Questioning a Former Employee
• VA LEO 1752: Contacting a Represented Party
• VA LEO 1820: Railroad Claims Lawyers and Rule 4.2

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1670.pdf

Original opinion text

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

Committee Opinion
April 1, 1996
LEGAL ETHICS OPINION 1670

CONTACT WITH FORMER EMPLOYEE
OF ADVERSE PARTY.

You have presented a hypothetical situation in which an attorney represents Defendant
in a dispute concerning the right to goods. Defendant bought the disputed goods from
Seller, who contends that Plaintiff released its lien prior to the sale to Defendant. Plaintiff
says the lien was not released. Officer, an employee of Plaintiff, signed documents which
Seller says were intended to release the lien. Seller says Officer's subsequent actions were
consistent with a release of the lien, and Seller believes Officer's testimony would be
favorable to Defendant. Officer no longer works for Plaintiff and is not represented by
counsel.
Under the facts you have presented, you have asked the committee to opine as to the
propriety of the Defendant's attorney communicating ex parte with Officer to determine
Officer's recollections concerning matters at issue in a lawsuit pending in a Virginia
Circuit Court.
The appropriate and controlling disciplinary rule relative to your inquiry is DR:7103(A)(1) which states that during the course of representation of a client, 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 counsel 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 it is permissible to contact, ex parte,
employees of an adverse corporation as long as the attorney first discloses their role as an
adversary to the corporation in litigation and second the employee does not occupy a
position within the corporation such that he or she could commit the corporation to
specific courses of action that would lead one to believe the employee is the corporation's
“alter ego”, i.e., that said employees are members of the corporation's “control group” as
defined in Upjohn Co. v. United States, 449 U.S. 383 (1981). Under the alter ego test, any
employee who because of their status or position might bind the corporation by their acts
or admissions must be contacted only through formal discovery channels and not by ex
parte methods. (See LE Op. 347, LE Op. 530 and LE Op. 801).
In prior opinions, this committee has adopted the “control group” test as a standard for
defining a group of employees to be treated as a “party” for purposes of DR:7-103(A)(1)
and who opposing counsel may not interview without the consent of counsel for the
corporate entity. Under the control group test it is not improper for an attorney to
communicate directly with the employee of an adverse party if that employee is not a
member of the control group and is not able to commit the organization to specific
courses of action that would lead one to believe the employee is the corporation's alter
ego. (See LE Op. 1504). Clearly, an officer of a corporation would be a likely member of
the corporation's control group or alter ego under this definition.

Committee Opinion
April 1, 1996
In the facts you present, the committee believes that the termination from employment
by Officer in this hypothetical is a pivotal point which distinguishes the analysis of this
hypothetical. A corporation acts through its employees. However, once an employee who
is also a member of the control group separates from the corporate employer by voluntary
or involuntary termination, the restrictions upon direct contact cease to exist because the
former employee no longer speaks for the corporation or binds it by his or her acts or
admissions. In fact, this committee has previously held that it is ethically permissible for
an attorney to communicate directly with the former officers, directors and employees of
an adverse party unless the attorney is aware that the former employee is represented by
counsel. (See LE Op. 533, LE Op. 905 and LE Op. 1589). Counsel for the corporation
represents the corporate entity and not individual corporate employees. (See EC:5-18). In
the instance where it is necessary to contact unrepresented persons, a lawyer should not
undertake to give advice to the person, except to advise them to obtain a lawyer. (See
EC:7-15).
The committee is mindful that some circuit courts and federal courts in Virginia have
interpreted DR:7-103(A)(1) differently. Some courts have applied a Model Rules
approach and prohibited ex parte contacts not only where the control group or alter ego
theory applies, but also where the activities or statements of an employee are part of the
focus of litigation or would make the employer vicariously liable as a result of the
employee's statements or activity. Queensberry v. Norfolk & Western Ry., 157 F.R.D. 21
(E.D. Va. 1993); Nila Sue DuPont v. Winchester Medical Center, Inc. — Winchester
Circuit Court Law No. 92-171. The committee also recognizes that a different opinion
might result if the facts of this hypothetical were analyzed under Rule 4.2 of the Model
Rules 1 which adopts a broader prohibition of ex parte contacts than DR:7-103(A)(1).
Nevertheless, the committee must apply the rules of conduct which Virginia has adopted
to this hypothetical and leave specific legal rulings involving other rules of ethical
conduct to the presiding trial judges of Virginia based upon the facts presented before
them. 2

1

ABA Model Rule 4.2 is quite similar to DR:7-103(A)(1). Rule 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a
party 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 by law to do so.
However, the Comment under Rule 4.2 provides that where the represented party is an organization, the
Rule prohibits communications by opposing counsel with persons having managerial responsibility and
with any other person whose act or omission in connection with that matter may be imputed to the
organization for purposes of civil or criminal liability or whose statement may constitute an admission on
the part of the organization.
2

Even so, Rule 4.2 would not prohibit ex parte contacts by opposing counsel with former employees,
including persons who occupied positions within the “control group” of their former employer. Former
employees of a corporation may be contacted without consulting the corporation's counsel as they are no
longer in positions of authority and, therefore, cannot bind the corporation. ABA Formal Op. 91-359
(1991).