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Opinion Number: 1993-05

Rule 4.2 does not prohibit plaintiff's counsel from contacting former employees of a corporate defendant

QUESTION:

"I am writing to request an opinion from the Alabama State Bar Association in reference to the application of Rule 4.2 which states:

'In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party 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 by law to do so.' We are currently Plaintiff's counsel in a lawsuit against Company A in XYZ, Alabama. The lawsuit involves allegations that Company A has polluted a plant site and surrounding land since 1960. The plant has been closed for many years. We propose to take the statements of several FORMER Company A employees whose testimony is factual in nature. We are not Seeking admissions from these employees which would effectively bind Company A. We are simply trying to ascertain the facts from these former employees concerning what happened and what they saw or know. None of these individuals have a current relationship with Company A. They were dismissed when the plant was closed in the mid-1980s.

Company A’s attorneys have advised me of their intent to invoke Rule 4.2 of the Alabama Rules of Professional Conduct and to seek sanctions if we attempt to interview these employees. I do not agree with Company A's position that this Rule should shield them from the consequences of their own wrongdoing and muzzle statements and disclosures of fact from people who have not been employees of Company A for many years. Nevertheless, I feel compelled to write the Bar Association regarding any potential impropriety of taking these statements and whether we will be allowed to take them. We will, of course, abide by any guidelines you suggest if we are allowed to take the statements.

I will await taking these statements until I obtain an opinion from the State Bar. However, time is extremely of the essence since our case is set for trial in September 1993."

ANSWER:

Rule 4.2, Alabama Rules of Professional Conduct, does not prohibit plaintiff's counsel from contacting former employees of a corporate defendant.

DISCUSSION:

In RO-92-12, the Disciplinary Commission held that Rule 4.2 of the Rules of Professional Conduct prohibits communication about the subject matter of the representation only with a "party" known to be represented by other counsel.In RO-88-34, the Disciplinary Commission had held that plaintiff's counsel in a tort claim action could contact and interview certain current corporate employees without the necessity of obtaining permission from the defendant or giving notice to the defendant's attorney. Plaintiff's counsel may not, without notice and permission, interview current employees who are in a position to bind the corporate defendant. However, ex parte contact with a former employee is not subject to the same scrutiny applied to current employees of a corporate defendant.

As the Commission stated in RO-92-12, "...there is a strong argument that Rule 4.2 does not even apply to former employees at any level." The one qualification might be, as discussed in Hazard and Hodes in the treatise The Law of Lawyering, those employees who occupied a managerial level position and were involved in the underlying transaction and being privy to privileged information, including a work product, which would prohibit plaintiff's counsel from accessing said information without a valid waiver by the organization and/or discovery and evidence rules. However, such an exception would be restricted to situations wherein these facts exist.

The instant holding of the Disciplinary Commission is supported by ABA Formal Opinion 91-359 (1991), a copy of which is attached hereto. Therein, the ABA Committee on Ethics and Professional Responsibility determined that former employees of a corporation could be contacted by plaintiff's counsel without consulting with the corporate defendant's counsel since the former employees were no longer in a position of authority, and, thus, could not "bind" the corporation.

JAM/vf

3/31/93