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Malpractice Alert Nov/Dec 2016 – Opinion 2016-5
Post on December 31st, 2016

Opinion 2016-5 examines Communication With Current and Former Corporate Employees. This situation is addressed by Rule 4.2 of the Rules  of Professional Conduct, which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

The opinion discussed Comment [7] of Rule 4.2 which lists three categories of current  employees an adverse lawyer may not contact without permission of corporate counsel. These categories include a current employee:

  • who supervises, directs, or regularly consults with the corporation’s lawyer concerning the matter
  • who has authority to obligate the corporation with respect to the matter
  • whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

The opinion advised extreme caution by adverse lawyers when interviewing current employees, even those who do not satisfy the categories in Comment [7].

The opinion next considered communication  with a former employee. It concluded that communication with a former employee, even one whose prior acts or omissions may be imputed to the corporation, is permissible  under Rule 4.2, but before interviewing a former employee, the lawyer should disclose his/her identity.

The opinion stated a lawyer may communicate on the subject of the representation with former employees, without notification or consent of the corporation’s lawyer, as long as the former employee is not represented by counsel.

Further, the opinion stated that a lawyer representing an interest adverse to a corporation may communicate with certain employees of the corporation without consent of a corporation’s lawyer, even when a corporate lawyer asserts a blanket representation of the corporation and all of its current and former employees. This opinion provides further guidance on situations that involve interviewing corporate employees.

Click here to view the Malpractice Alert Nov/Dec 2016.