Could a plaintiff’s lawyer interview top officers of an employer involved in a related workers’ compensation claim?

Short answer Opinion 95-17 required consent from counsel for the employer’s workers’ compensation insurer before contacting the employer’s top administrative officers about the injury. It did not require consent from lawyers for individual co-employee defendants in the third-party suit.
Bar
VTBAR
Issued
1995

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This page answers the general question as of 1995. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

The plaintiff had a workers’ compensation claim against her governmental employer and a separate personal injury action against co-employee managers and others. Her lawyer wanted to interview top employer officers about the injury. The employer was not a defendant in the personal injury suit, but insurer counsel represented it in the compensation claim.

The committee treated DR 7-104(A)(1)'s restriction on contacting a represented person as extending beyond formal parties in the same caption. Because the compensation claim and third-party action involved the same material facts, and top administrators could affect the employer’s interests, the committee regarded those officers as represented in the matter by insurer counsel.

The lawyer therefore needed consent from the insurer’s attorney before the proposed interviews. The committee did not require consent from counsel for the co-employee defendants in the personal injury suit.

Currency note

This opinion was issued in 1995 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the employer have to be named as a defendant for the contact rule to apply?

A: No. The committee found the related compensation claim and the officers’ role sufficient to treat them as represented in the matter.

Q: Whose consent was required?

A: The lawyer needed consent from counsel retained by the employer’s workers’ compensation insurer.

Q: Was consent from the co-employees’ defense lawyers also required?

A: No. The committee said DR 7-104(A)(1) did not bar contact without their consent.

Background and rules framework

The opinion interpreted former DR 7-104(A)(1) and EC 7-18 on contact with represented persons and cited ABA Formal Opinion 95-396.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 7-104(A)(1); EC 7-18.

Other opinions cited:

  • ABA Formal Opinion 95-396; Vermont Opinion 93-9.

See also

Source

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