Can a lawyer directly contact the employees of an adverse corporation to investigate the case?

Plain-English summary

The committee addressed whether an attorney may directly contact the employees of an adverse party to investigate a case. It concluded that direct contact is improper where the employees occupy positions within the corporation such that they could commit the corporation to specific causes of action, leading one to believe they are the corporation's alter-ego, that is, members of its "control group" as defined in Upjohn Co. v. United States, 449 U.S. 383 (1981). The committee cited its prior LE Op. 795.

Currency note

This opinion was issued in 1986, 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 Comment [4] of current Rule 4.2 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 Treat this page as historical context, not current guidance.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: Can a lawyer interview an adverse company's employees during investigation?

A: Under this 1986 opinion, not the "control group" employees, those who can commit the corporation to specific causes of action; direct contact with them is improper. The opinion frames the limit by reference to the Upjohn control-group analysis.

Q: Which employees count as the corporation's "control group"?

A: The committee described employees whose positions let them commit the corporation to specific causes of action, such that they could be regarded as the corporation's alter-ego, drawing on Upjohn Co. v. United States.

Background and rules framework

The opinion addresses contact with an adverse organization's constituents, applying the former Code's prosecutorial and communication restraints and the committee's prior LE Op. 795. The committee note maps the question onto current Virginia Rule 4.2 and its Comment [4], which adopts the control-group analysis, corresponding to ABA Model Rule 4.2.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 4.2 and Comment [4] / ABA Model Rule 4.2 (communication with a represented organization's employees; control-group analysis)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 667 (1981), control-group analysis

Other opinions cited:

• LE Op. 795 (relied on by the committee)

See also

• VA LEO 848: A Prosecutor Taping a Represented Suspect
• VA LEO 987: A Lawyer on a Facility's Human Rights Committee
• VA LEO 814: A Lawyer's Personal Interest in the Litigation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0801.pdf

Original opinion text

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

LEGAL ETHICS OPINION 801

CONTACTING EMPLOYEES OF
ADVERSE PARTY.

It is improper for an attorney to directly contact the employees of an adverse party for
the purpose of investigation if said employees occupy positions within the corporation
such that they could commit the corporation to specific causes of action which would
lead one to believe that the employees are the alter-ego of the corporation, i.e. that said
employees are members of the corporation's “control group” as defined in Upjohn Co. v.
U.S., 449 U.S. 383, 101 S. Ct. 667 (1981). [LE Op. 795]

Committee Opinion
May 27, 1986

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.