Opinion Number: 1988-34
Lawyer may contact employee of opposing party without notice or permission of opposing counsel if employee (1) can't bind adverse party by his or her testimony; (2) is not executive officers/managers of adverse party; or, (3) is not actually tortfeasor for whose conduct the adverse party could be held liable.
"Our firm represents a plaintiff who has a tort claim against a corporation. Certain employees of the defendant witnessed the incident and possess facts which we need to know in order to properly prepare our client's case. The defendant, of course, has the advantage of immediate and informal access to these witnesses.
Our question is whether there is any ethical prohibition forbidding us to directly contact and interview these witnesses? Is the opinion altered if the contact is initiated (1) before suit is filed and (2) after suit is filed and counsel has appeared for the defendant corporation?"
The Disciplinary Commission has addressed this question previously and has, in opinions RO-84-160, RO-86-125, and RO-88-27, among others, established certain guidelines in this area. Specifically, you may directly contact and interview certain employee witnesses of the defendant, without the necessity of obtaining permission from the defendant or giving notice to the defendant's attorney. You may not interview, without notice and permission, witnesses who are in a position to bind the defendant (RO-84-160, citing ABA Informal Opinions 1377 and 1410). The Disciplinary Commission has stated in RO-88-27, when discussing the permissibility of obtaining information from the employee of a corporate defendant that the attorney need not "... obtain the consent of counsel for the corporation and/or the officer by whom the prospective witness is employed. However, we further note that in reaching this conclusion we have accepted the premise that the employee who is to be interviewed is not an agent of the corporation and is not in a position to act in a binding capacity for the corporate defendant."
Further such contact may be initiated without reference to whether suit has been filed or is merely anticipated. It is noted that in Opinion RO-86-125 the Commission addressed the issue of direct contact not only with a potential witness but also with a prospective non-represented defendant.
You have stated in your request for opinion that the employees you wish to interview are "low level" employees who do not fall into any of the three following categories, to-wit: employees who are executive officers of the adverse party; employees who, by virtue of the terms of their employment or position, could bind the adverse party by their testimony; or, witnesses who are actually the tort feasors and for whose conduct the adverse party could be held liable. Given the number of opinions on this subject cited above, and the limitations indicated in your request, your contact with the prospective witnesses would be permissible and would entail no ethical prohibitions other than those noted.