May a lawyer communicate directly with employees of an adverse corporation in litigation without going through the corporation's counsel?

Plain-English summary

The committee considered whether a lawyer could communicate directly with employees of a corporation adverse to the lawyer's client in litigation. It concluded there is nothing ethically impermissible about doing so, so long as the employee does not occupy a position within the corporation such that the employee could commit the organization to specific courses of action that would lead one to believe the employee is the corporation's alter ego. It cited DR 7-103(A)(1).

Currency note

This opinion was issued in 1979, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 4.2 Comment [4] adopts the "control group" analysis for determining the propriety of communications with employees of an adverse organization. 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 Treat this page as historical context, not current guidance.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: Could a lawyer talk to an adverse company's employees directly?

A: Under this 1979 opinion, yes, unless the employee occupied a position that could commit the corporation to a course of action, making the employee the corporation's alter ego.

Q: What is the "alter ego" line the opinion drew?

A: The committee drew the line at employees who could commit the organization to specific courses of action. The committee note records that current Rule 4.2 Comment [4] frames this as the "control group" analysis.

Background and rules framework

The opinion applied the former Code's DR 7-103(A)(1) to direct contact with an adverse corporation's employees. The committee note maps the question onto current Virginia Rule 4.2 and its Comment [4] "control group" analysis, corresponding to ABA Model Rule 4.2 on communication with a represented person.

Citations and references

Rules of Professional Conduct:

• DR 7-103(A)(1) (former Code)
• Virginia Rule 4.2 and Comment [4] (control group analysis) (cited in the committee note)
• ABA Model Rule 4.2 (communication with represented persons)

See also

• VA LEO 530: Contacting Non-Control-Group Employees of an Adverse Corporation
• VA LEO 459: Contacting an Adverse Corporation's Alter-Ego Employees

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0347.pdf

Original opinion text

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

LEGAL ETHICS OPINION 347

ADVERSE INTERESTS - CORPORATE CLIENT.

There is nothing ethically impermissible with an attorney communicating with employees of a corporation adverse to the interests of the attorney's client in litigation so long as the employee does not occupy a position within the corporation such that he or she could commit the organization or corporation to specific courses of action that would lead one to believe the employee is the corporation's alter ego. [See II: DR:7-103(A)(1).]

Committee Opinion
December 4, 1979

Legal Ethics Committee Notes. - Rule 4.2 Comment [4] adopts the “control group” analysis for determining the ethical propriety of communications with employees of an adverse organization.