Could a plaintiff’s lawyer interview top officers of an employer involved in a related workers’ compensation claim?
Apply this to your situation
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.
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 Treat this page as historical context, not current guidance.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
- Landing page: VBA topic page
- Original PDF: Vermont Advisory Opinion 95-17
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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