Ezel / Ethics Opinions / WISBAR
WISBAR July 1, 2007

When an organization is represented, which of its current or former employees can opposing counsel contact without the organization lawyer's consent?

Short answer: The opinion concludes that under SCR 20:4.2 opposing counsel may not contact, without the organization lawyer's consent, current constituents who direct or regularly consult with that lawyer about the matter, who can bind the organization on the matter, or whose acts may be imputed to it for liability. All other current constituents, and all former constituents regardless of past position, may be contacted. The contacting lawyer must still state their role, avoid privileged matters, and give no legal advice.

Apply this to your situation

This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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.
View original ethics opinion (PDF)

Plain-English summary

Opinion E-07-01 (effective July 1, 2007) interprets SCR 20:4.2, the no-contact rule, as it applies to the constituents (employees, officers, agents) of a represented organization. The rule's text bars communicating about the matter with a person known to be represented by another lawyer, but it is Comment [7] that addresses organizations. Wisconsin's SCR 20:4.2 is identical to ABA Model Rule 4.2 as revised in the 2002 Ethics 2000 amendments, which narrowed the comment by removing the vague "managerial responsibility" language and the "statement may constitute an admission" language, and by adding that contact with former constituents is not prohibited.

For current constituents, the committee follows the comment's three categories: opposing counsel may not contact, without the organization lawyer's consent, a constituent who supervises, directs, or regularly consults with that lawyer concerning the matter; who has authority to obligate the organization on the matter; or whose act or omission in the matter may be imputed to the organization for civil or criminal liability. Every other current constituent may be contacted without consent. For former constituents, the committee concludes that no consent is required regardless of the position the person once held, though counsel may not use a former constituent's privileged communications.

The committee stresses that contact permitted by SCR 20:4.2 is not unconstrained. Under SCR 20:4.4 and 20:4.3, a lawyer contacting a current or former constituent must state their role in the matter, must not use methods of obtaining evidence that violate the organization's legal rights (such as inducing disclosure of attorney-client privileged communications, citing Upjohn Co. v. United States), and must not give the unrepresented constituent legal advice beyond advising them to get counsel. The committee rejects the argument that mere possession of privileged information brings a constituent within SCR 20:4.2, noting the privilege protects communications, not underlying facts, and that protective orders, disqualification, and discipline remain available if counsel oversteps. Finally, a lawyer for an organization may not assert blanket representation of all constituents and may request, but not require, that current constituents decline to speak with opposing counsel; the mere presence of in-house counsel does not make the organization represented in all matters. The opinion withdraws E-82-10 and E-91-01.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As SCR 20:4.2 stood at the time of the opinion (the 2007 rule set), a Wisconsin lawyer adverse to a represented organization could interview most of its current employees, and any former employee, without the organization lawyer's consent, but could not contact the narrow set of current constituents who run the matter, can bind the organization, or whose conduct may be imputed to it. The committee concludes that the contacting lawyer must still disclose their role, must not seek privileged communications, and must not give the constituent legal advice, and that an organization cannot shield all constituents by claiming blanket representation.

Common questions

Q: Can opposing counsel interview a represented company's current employees?

A: Most of them, yes. The committee concludes that SCR 20:4.2 bars contact only with current constituents who direct or regularly consult with the company's lawyer on the matter, can bind the company, or whose acts may be imputed to it; all other current employees may be contacted without consent.

Q: What about former employees of the organization?

A: They may be contacted without consent, regardless of their former position. The committee concludes that the 2002 revision to Comment [7] confirms SCR 20:4.2 does not reach former constituents, though their privileged communications remain off-limits.

Q: Does an employee's access to privileged information put them off-limits?

A: No, not by itself. The committee concludes that possessing privileged information does not bring a constituent within SCR 20:4.2, because the privilege protects communications, not facts; SCR 20:4.4 still forbids inducing disclosure of the privileged communications.

Q: Can a company's lawyer tell all employees not to talk to the other side?

A: Only as a request. The committee concludes that an organization's lawyer may not assert blanket representation of all constituents and may request, but not require, that current constituents refrain from giving information to opposing counsel.

Background and rules framework

The opinion interprets SCR 20:4.2 / Model Rule 4.2 (communication with a represented person), relying on Comment [7] and the 2002 Ethics 2000 revisions, and it applies SCR 20:4.4 / Model Rule 4.4 (respect for the rights of third persons) and SCR 20:4.3 / Model Rule 4.3 (dealing with unrepresented persons) to the obligations of a lawyer who contacts a constituent. It notes that special considerations apply to government entities (citing ABA Formal Op. 97-408 and Wisconsin Ethics Op. E-95-1).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)
  • Wis. SCR 20:4.4(a) / Model Rule 4.4 (rights of third persons)
  • Wis. SCR 20:4.3 / Model Rule 4.3 (unrepresented persons)

Cases:

  • Upjohn Co. v. United States, 449 U.S. 383 (1981), privilege can attach to communications with any corporate employee, but protects communications, not facts
  • Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990), scope of no-contact rule for corporate employees
  • Snider v. Superior Court, 113 Cal. App. 4th 1187, 7 Cal. Rptr. 3d 119 (2003), rejecting extension of Rule 4.2 to all constituents with privileged information

Other opinions cited:

  • ABA Formal Op. 97-408 (government entities); Wisconsin Ethics Op. E-95-1
  • DC Ethics Op. 287 (1998); Utah Ethics Op. 04-04 (2004); Ohio Ethics Op. 2005-03; Virginia Ethics Op. 1749 (2001); South Carolina Ethics Op. 01-01 (2001)
  • Wisconsin Ethics Ops. E-82-10 and E-91-01 (withdrawn by this opinion)

See also

Source

Get today's answer for your situation

You just read a 2007 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.