Which employees of a represented corporate adversary can a West Virginia lawyer contact directly without going through the company's counsel?

Plain-English summary

The inquiry asked which personnel of a corporation that has retained counsel a lawyer for an adverse party may contact directly during an investigation. The Committee answered by reference to DR 7-104(A), the no-contact rule, which barred a lawyer from communicating about the matter with a party known to be represented absent that party's lawyer's consent, and from giving advice to an unrepresented person whose interests may conflict with the client's.

Agreeing with ABA Informal Opinion 1410, the Committee concluded that the lawyer is permitted to communicate with employees of an adverse corporate defendant other than its directors, officers, managing agents, and persons designated under the rules to speak on behalf of the corporation. Any other employee may be ethically contacted.

The Committee added a timing limit: all directors, officers, and managing agents who were employed at the time of the incident giving rise to the lawsuit are not subject to inquiry without the corporate attorney's approval or other legal authorization. Former employees, and directors, officers, and managing agents from other time periods, are subject to such inquiry. The Committee enclosed a copy of ABA Informal Opinion 1410 (2/14/78) as providing the guidelines for deciding whether a given officer or employee counts as the represented "party."

Currency note

This opinion was issued in 1987, before West Virginia replaced its Code of Professional Responsibility (the DR rule cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The no-contact rule is now found, in revised form, at Rule 4.2, and the treatment of an organization's constituents has developed in later authority. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a West Virginia lawyer interview a represented company's lower-level employees directly?

A: Yes. The opinion concluded the lawyer could communicate with employees of the adverse corporate defendant "other than directors, officers, managing agents and persons designated under the rules to speak on behalf of the corporation," and that "[a]ny other employee may be ethically contacted."

Q: What about the company's officers and managing agents?

A: The opinion treated all directors, officers, and managing agents who were employed at the time of the incident giving rise to the lawsuit as off limits absent the corporate attorney's approval or other legal authorization.

Q: Could the lawyer contact former employees?

A: Yes. The opinion stated that other former employees, and directors, officers, and managing agents from other time periods, are subject to inquiry.

Background and rules framework

The opinion interpreted DR 7-104(A) of the then-current Code of Professional Responsibility, the predecessor to the no-contact rule now stated at Rule 4.2, and the unrepresented-person provision now at Rule 4.3. Rather than write its own constituent test, the Committee adopted ABA Informal Opinion 1410 (Feb. 14, 1978) and enclosed a copy of it, treating that opinion's guidelines as the standard for deciding whether a corporate officer or employee should be considered the represented party.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 7-104(A) (communication with a represented party; advice to an unrepresented person)

Other opinions cited:

• ABA Informal Opinion 1410 (Feb. 14, 1978): guidelines for determining whether a corporate officer or employee is the represented "party" (enclosed with the opinion and reproduced in the linked PDF)

See also

• ABA Formal Op. 06-443: Contact with an organization's inside counsel
• ABA Formal Op. 95-396: Communications with represented persons
• ABA Formal Op. 97-408: Communicating with a represented government agency

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e2f3bf3952d14cbb0.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. The opinion enclosed a copy of ABA Informal Opinion 1410, reproduced in the linked PDF; the West Virginia opinion letter is transcribed below.

THE WEST VIRGINIA STATE BAR

LEGAL ETHICS INQUIRY 87-1
Letter dated January 12, 1987

Reference is made to your letter of December 22, 1986, requesting our opinion regarding contacts with personnel of a corporation which is an adverse party in a matter in which you are employed.

DR 7-104(A) provides that during the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

We agree with your position that you are permitted communications with employees of an adverse corporate defendant other than directors, officers, managing agents and persons designated under the rules to speak on behalf of the corporation. Any other employee may be ethically contacted. Similarly, all directors, officers and managing agents who are employed at the time of the incident giving rise to the lawsuit are not subject to inquiry absent approval of the corporate attorney or as otherwise authorized by law. Other former employees or directors, officers and managing agents from other time periods are subject to such inquiry.

I am enclosing for your information a copy of ABA Informal Opinion 1410 (2/14/78) which provides basic guidelines for determining whether an officer or employee should be considered a party for the purposes of the rule.