Can a lawyer interview employees of a represented adverse corporation who are senior enough to bind the company?

Plain-English summary

The committee addressed contact with witnesses for an adverse party that is a corporation represented by counsel. It concluded that it is ethically improper for an attorney to communicate with those witnesses who are employees of the corporation senior enough to commit it to certain courses of action, as its alter ego. The attorney may communicate with such witnesses only if the attorney first receives permission from the corporation's counsel. It cited LE Op. 347 and ABA Informal Opinion 1377 (June 2, 1977).

Currency note

This opinion was issued in 1982, 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 records that current Rule 4.2 Comment [4] adopts the "control group" analysis for determining the ethical 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 Treat this page as historical context, not current guidance.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: Can a lawyer interview senior employees of the opposing company?

A: Under this 1982 opinion, not those who could commit the corporation as its alter ego, unless the corporation's counsel first gave permission.

Q: Which employees fall within the bar?

A: Employees senior enough to commit the corporation to certain courses of action, that is, those who function as the corporation's alter ego.

Q: What current rule governs this?

A: The committee note states that current Rule 4.2 Comment [4] adopts the "control group" analysis for communications with employees of an adverse organization.

Background and rules framework

The opinion addresses ex parte contact with a represented corporation's senior employees, barring it absent opposing counsel's permission. 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 represented persons.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 4.2 and Comment [4] (control group analysis) (cited in the committee note)
• ABA Model Rule 4.2 (communication with a represented person)

Other opinions cited:

• Virginia LE Op. 347
• ABA Informal Opinion 1377 (June 2, 1977)

See also

• VA LEO 530: Contacting Employees of an Adverse Corporation
• VA LEO 801: Contacting an Adverse Corporation's Control Group
• VA LEO 1670: Ex Parte Contact With a Former Employee of an Adverse Corporation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0459.pdf

Original opinion text

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

LEGAL ETHICS OPINION 459

COMMUNICATION WITH WITNESSES FOR ADVERSE PARTY.

It is ethically improper for an attorney to communicate with any witnesses for the adverse party (a corporation which is represented by counsel) who are such employees of the corporation as could commit the corporation to certain courses of action, as its alter ego. Only if the attorney first receives permission from the corporation's counsel to communicate with these witnesses may he do so. [See LE Op. 347 and ABA Informal Opinion 1377, June 2, 1977.]

Committee Opinion
July 21, 1982

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.