Can a lawyer contact employees of an adverse corporation in litigation, and which employees are off limits?

Plain-English summary

The committee addressed whether a lawyer may communicate with employees of a corporation that is adverse to the lawyer's client in litigation. It concluded there is nothing ethically impermissible in doing so, subject to two conditions: the lawyer must first disclose the adversarial role in the litigation, and the employee must not occupy a position such that he or she could commit the organization to specific courses of action, which would make the employee the corporation's alter ego. It cited DR 7-103(A) and LE Op. 347 (formerly Legal Ethics Opinion 436).

Currency note

This opinion was issued in 1983, 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 Treat this page as historical context, not current guidance.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 talk to employees of the company on the other side?

A: Under this 1983 opinion, yes for most employees, if the lawyer first discloses the adversarial role; the limit is on employees who could commit the corporation.

Q: Which employees are off limits?

A: Those who occupy a position from which they could commit the organization to specific courses of action, such that the employee is 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 applies the former Code's DR 7-103(A) to ex parte contact with an adverse corporation's employees, drawing a line between rank-and-file employees and those who can bind the entity. 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:

• DR 7-103(A) (former Code; communication with adverse parties)
• 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 (formerly LE Op. 436)

See also

• 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/0530.pdf

Original opinion text

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

LEGAL ETHICS OPINION 530

CONFLICT OF INTEREST/ COMMUNICATION WITH ADVERSE WITNESSES.

There is nothing ethically impermissible with an attorney communicating with employees of a corporation adverse to the interest of the attorney's client in litigation so long as (1) the attorney first discloses his adversarial role in the litigation and (2) 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. [DR:7-103(A) and LE Op. 347 (formerly Legal Ethics Opinion 436)]

Committee Opinion
November 23, 1983

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.