Can a lawyer interview a former employee of an opposing corporation ex parte, and can the lawyer ask about that employee's privileged communications with the company's counsel?

Plain-English summary

A plaintiff sued a corporation in a personal-injury case. During the litigation, corporate counsel had interviewed an employee (outside the control group) who had relevant knowledge; those interviews were confidential and privileged. The employee later left the company, and plaintiff's counsel then made ex parte contact with her, asking both about the facts she knew and about the substance of her communications with corporate counsel. The committee was asked whether the lawyer could (1) inquire into matters known or reasonably apprehended to be confidential communications, and (2) induce the former employee to disclose such communications.

The committee separates the threshold question (may the lawyer contact the former employee at all?) from the content question (what may the lawyer ask?). On contact, it follows LEOs 533, 905, 1589, and 1670: a lawyer may contact a former employee of an opposing party so long as that person is not separately represented. Comment 4 to Rule 4.2 expressly states the rule's contact bar does not apply to former employees, and the committee finds contrary holdings in other states unpersuasive because only Virginia's rule carries that comment. The committee notes that under Rule 3.4(f) the former employer's counsel may ask the former employee not to talk with opposing counsel, but allowing the contact simply gives both sides a level playing field with a potential witness neither represents.

On content, the committee holds the contact must be limited. The former employee was a "constituent" of the entity under Rule 1.13(a), and Comment 2 to Rule 1.13 extends Rule 1.6 confidentiality to constituent-counsel communications, so the corporation retains a confidentiality interest in what the employee discussed with its lawyer. Under Rule 4.4, a lawyer may not obtain evidence in a way that violates a third person's rights; asking the former employee to reveal those privileged communications would violate the corporation's confidentiality right and thus Rule 4.4. The committee draws the line by analogy to Rule 4.3 (limits on dealing with unrepresented persons): the lawyer may seek factual information but may not seek any information reasonably foreseeable as stemming from attorney-client communications. Because inquiry into the confidential communications is prohibited in all instances, the answer to the remaining sub-questions is that those inquiries are likewise prohibited.

Currency note

This opinion was issued in 2001. Virginia's Rules 1.6, 1.13, 4.2, 4.3, and 4.4 may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, a lawyer may make ex parte contact with an unrepresented former employee of an opposing corporation, because Comment 4 to Rule 4.2 excludes former employees from the contact bar. It also holds the lawyer may ask about facts but may not ask the former employee to disclose communications he had with the corporation's counsel, because Rule 1.13 and Rule 1.6 give the corporation a confidentiality interest in those communications and Rule 4.4 bars obtaining evidence in a way that violates that interest.

Common questions

Q: Can a lawyer contact a former employee of the company on the other side?

A: Yes, if the former employee is not separately represented. The committee relies on Comment 4 to Rule 4.2, which states the rule's contact prohibition does not apply to former employees, and on LEOs 533, 905, 1589, and 1670.

Q: Can the lawyer ask that former employee what the company's lawyer told her?

A: No. The committee holds the corporation keeps a Rule 1.6 confidentiality interest in the former employee's privileged communications with corporate counsel (via Rule 1.13), and that asking her to reveal them would violate the corporation's rights under Rule 4.4.

Q: Does the former employer have any way to limit the contact?

A: The committee notes that under Rule 3.4(f) the former employer's counsel may request that the former employee not communicate with opposing counsel, though the committee allows the contact itself as a level playing field for a witness neither side represents.

Background and rules framework

The opinion interprets Rule 4.2 (communication with represented persons, and Comment 4 excluding former employees), Rule 1.13(a) (organization as client, acting through constituents) with Comment 2 (extending Rule 1.6 confidentiality to constituent-counsel communications), Rule 1.6 (confidentiality), and Rule 4.4 (a lawyer may not use methods of obtaining evidence that violate a third person's rights). It analogizes the content limit to Rule 4.3's limits on dealing with unrepresented persons.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 4.2 and Comment 4 (communication with represented persons; former employees excluded; former DR 7-103(A)(1))
• Virginia Rule 1.13(a) and Comments 1, 2 (organization as client; constituents; confidentiality of constituent-counsel communications)
• Virginia Rule 1.6 (confidentiality of information)
• Virginia Rule 4.4 (respect for rights of third persons)
• Virginia Rule 4.3 (dealing with unrepresented persons), Rule 3.4(f) (requesting a person not volunteer information)

Other opinions cited:

• Virginia LEOs 533, 905, 1589, 1670: a lawyer may contact an unrepresented former employee of an opposing party.
• Virginia LEOs 1643, 1702: protection of client confidences and secrets as a bedrock principle.

See also

• 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/1749.pdf

Original opinion text

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

Committee Opinion
March 29, 2001
LEGAL ETHICS OPINION 1749

PROPRIETY OF ATTORNEY ASKING
QUESTIONS ABOUT ADVICE
PROVIDED BY CORPORATE COUNSEL
WHEN QUESTIONING FORMER
EMPLOYEE OF OPPOSING PARTY.

You have presented a hypothetical situation in which a plaintiff sues a corporation in a
personal injury action. The counsel for the corporation, in the course of investigation,
interviews an employee who has knowledge of matters relevant to the litigation. The
employee is not within the corporate control group. The interviews all occur on the
corporation’s premises during the employee’s normal work hours. The employee is acting
within the course and scope of employment in participating in the interviews. The
communications are confidential in nature and no factors exist which would constitute a
waiver of the attorney-client privilege as to these communications.
Thereafter, and while the litigation remains pending, the employee terminates her
employment with the corporation. Upon learning this, the plaintiff's counsel initiates ex
parte contact with the employee and inquires not only regarding the facts known to the
employee, but also regarding the substance of the communications with counsel.
Under the facts you have presented, you have asked the committee to opine as to
whether it is a violation of the Rules of Professional Conduct for counsel to:
1. Inquire into matters known or reasonably apprehended to be confidential
communications when interviewing, ex parte, a former employee of a
corporate adversary in pending litigation.
2. Induce a former employee of a corporate adversary in pending litigation to
disclose matters known or reasonably apprehended to be confidential
communications in an ex parte interview where: a) such disclosure might
subject the employee to civil liability; b) the employee is unrepresented by
counsel; or c) the communications fall within the attorney-client privilege and
pertain directly to the matters in litigation.
The appropriate and controlling rules relative to your inquiry are Rule 1.6, 1.13(a), 4.2,
and 4.4. Those rules state in pertinent part as follows:
RULE 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information protected by the attorney-client privilege
under applicable law or other information gained in the professional relationship
that the client has requested be held inviolate or the disclosure of which would be
embarrassing or would be likely to be detrimental to the client unless the client
consents after consultation, except for disclosures that are impliedly authorized in
order to carry out the representation, and except as stated in paragraphs (b) and
(c).

Committee Opinion
March 29, 2001
RULE 1.13 Organization as Client
(a) A lawyer employed or retained by an organization represents the organization
acting through its duly authorized constituents.
RULE 4.2 Communication With Persons Represented By Counsel
In representing a client, a lawyer 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 by law to do so.
RULE 4.4 Respect For Rights Of Third Persons
In representing a client, a lawyer shall not use means that have no purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
In considering whether the attorney in this inquiry may participate in the described
conversation with the former employee, two distinct questions need resolution. The initial
threshold question is whether the attorney may contact the former employee of the
opposing corporate party. If that threshold question is answered in the affirmative, then a
second question becomes whether the content of that contact is restricted or unlimited.
With regard to the threshold question of whether an attorney may contact the former
employee of an opposing party, this Committee previously opined that such contact is
permissible so long as that former employee is not represented by his own counsel. See,
LEOs 533 [LE Op. 533], 905 [LE Op. 905], 1589 [ LE Op. 1589], 1670 [LE Op. 1670].
Those opinions all interpret former DR:7-103(A)(1). Current Rule 4.2 is substantially the
same as the previous rule; the only change is the replacement of “party” with “person.”
That change has no pertinent impact on the analysis in those prior opinions. Moreover,
Comment 4 to Rule 4.2 expressly clarifies that the contact prohibition of that rule does
not apply to contact with former employees. While the Committee is aware that some
other states have found such contact generally impermissible under Rule 4.2, the
Committee finds the conclusions of those states unpersuasive as only the Virginia rules
contain the pertinent language found in Comment 4. Accordingly, the Committee opines
that the lawyer in this scenario may contact the former employee of the opposing party
regarding the litigation.
In allowing the contact generally, the Committee notes that under Rule 3.4(f), the
employer's counsel can request that the former employee not communicate with opposing
counsel. To allow contact from the opposing counsel would merely provide a level
playing field where both attorneys in a dispute, neither of which represent the former
employee, may contact that potential witness.
The question remains what restrictions, if any, apply to the content of the contact
between the attorney and the former employee. Specifically, this request asks whether the
attorney may ask questions that seek information from confidential communications with
the corporation's attorney. This Committee has previously addressed that protection of

Committee Opinion
March 29, 2001
client confidences and secrets is a “bedrock principle” of legal ethics. See, LEOs 1643
[LE Op. 1643], 1702 [LE Op. 1702]. Accordingly, this Committee does not want to erode
that principle unnecessarily. For the attorney-client relationship to develop in a way that
facilitates delivery of quality legal services, both the attorney and the client need to
depend on the protection of their confidential communications. Without such assurance,
open discourse is hampered.
To maintain protection of client confidences and secrets, some states have opted to
prohibit all contact with former employees that have communicated with former counsel.
See generally, Restatement (Third) of the Law Governing Lawyers § 162 (Proposed
Official Draft 1998); Susan J. Becker, Conducting Informal Discovery of a Party's
Former Employees: Legal and Ethical Concerns and Constraints, 51 Md. L. Rev. 239.
As discussed above, the Comments to Virginia’s Rule 4.2 preclude that option.
Moreover, the Committee opines that such a sweeping prohibition is broader than needed
for the goal of confidentiality protection. Many former employees will have had little or
no contact with the former employer’s counsel. Such employees may have valuable
information having to do with the facts of a case and not with the counsel's legal advice.
Such nonlegal information can be critical in opposing counsel’s determination of whether
a potential case has merit or would be frivolous. This Committee opines that a more
limited prohibition can serve the confidentiality protection.
The Committee believes that the only needed prohibition on contact with former
employees is one of content restriction. The Rules of Professional Conduct already limit
the content of an attorney’s communication with unrepresented parties; Rule 4.3 requires
that the attorney identify his role in the matter and that the attorney provide no legal
advice other than to obtain independent counsel. Thus, attorneys are directed by Rule 4.3
to curb their contact with unrepresented parties to prevent overreaching. Similarly,
confidentiality protection can survive contact with former employees with a prohibition
on seeking any information that may reasonably be foreseen as stemming from attorneyclient communications.
In determining the parameters of this content prohibition, consideration must be given
to the complexity presented by an entity client. Virginia's Rules of Professional Conduct
address that complexity in Rule 1.13(a), which notes that an attorney represents an entity
client through its “constituents,” defined as “officers, directors, employees, shareholders,
and other constituents.” See, Rule 1.13, Comment 1. Thus, the former employee in this
inquiry was a constituent of the corporation at the time of his communications with the
corporation's attorney. Comment 2 to Rule 1.13 establishes that the confidentiality
protections afforded all clients under Rule 1.6 attach to constituent/attorney
communications in order to preserve the client's (i.e., the entity’s) right to confidentiality.
Thus, under that provision, the communications between the former employee, during the
tenure of his employment, with the corporation's attorney must receive the confidentiality
protection of Rule 1.6.
In considering whether the attorney in the inquiry may ask this former employee about
those confidential communications, Rule 4.4 is pertinent. Rule 4.4 prohibits an attorney

Committee Opinion
March 29, 2001
from obtaining evidence in a manner that violates the rights of a third party. As
established above, the corporation has a right to confidentiality for the
constituent/attorney communications involving this former employee. The attorney
would violate that right and, therefore, Rule 4.4 if he were to ask the former employee to
disclose the content of those constituent/attorney discussions.
The committee opines that the attorney in this request’s scenario may contact the
former employee but that such contact must be limited as described in this opinion. As
the answer to the first question of this request prohibits inquiry into confidential
communications in all instances, the answer to the remaining three questions is, of
course, that such inquiries are prohibited.
Committee Opinion
March 29, 2001