Can a lawyer for the opposing party contact former employees of a represented corporation without the corporation's counsel consenting?

Plain-English summary

The Committee was asked to re-evaluate Opinion 88-3, which had concluded that an attorney for an opposing party in a suit against a corporation may contact former employees of the corporation, including former members of the control group who dealt with the subject matter of the litigation, without the permission of corporate counsel. That earlier conclusion was qualified: the attorney could not contact a former employee who was individually represented on the pending matter, and could not inquire into privileged attorney-client communications. The Committee reaffirmed Opinion 88-3 and used 91-1 to explain its rationale and to distinguish contrary authority.

The opinion applied DR 7-104(A)(1), which bars a lawyer from communicating about the subject of the representation with a "party" known to be represented by another lawyer absent that lawyer's consent. The opinion explained that the rule exists to keep lawyers from circumventing adversary counsel to exploit the represented party, and that because corporations act through natural persons, some current employees (the control group, or those whose acts bind the corporation) must be treated as parties. The question was whether former employees also count as "parties." The Committee concluded they do not. It reasoned that the attorney-client privilege continues after employment ends but protects only the communications, not the underlying facts, so the privilege does not require extending the "party" definition to former employees.

The opinion acknowledged authority reading Model Rule 4.2's comment to bar contact with former managerial employees, notably Sperber v. Washington Heights (S.D.N.Y. 1983), which a majority of the Committee declined to follow and which had itself been vacated and withdrawn. The Committee found that the rule's objectives are not advanced by preventing an attorney from discussing factual issues with a former employee, even where those facts might impute liability to the organization, because the facts do not change depending on whether corporate counsel consents to the interview. The opinion noted that the version of the Model Rules then approved by the Board of Governors, and pending before the Alaska Supreme Court, retained the Rule 4.2 language and comment that the Sperber court had interpreted.

Currency note

This opinion was issued in 1991, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility and analyzes a version of the Model Rules then only pending before the Alaska Supreme Court). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer contact a represented corporation's former employees without asking corporate counsel?

A: Yes. The opinion reaffirmed that a lawyer may contact former employees of an adverse corporation without corporate counsel's permission, because former employees are not "parties" under DR 7-104(A)(1).

Q: Did it matter that the former employee had been in the control group?

A: No. The opinion concluded the contact was permitted even for former members of the corporation's control group, so long as the person had left the corporation's employ.

Q: Were there any limits on the contact?

A: Two. The opinion held the lawyer could not contact a former employee who was individually represented on the pending matter, and could not inquire into the former employee's privileged attorney-client communications with corporate counsel.

Q: Why did the Committee reject the cases barring contact with former managerial employees?

A: The opinion reasoned that the anti-contact rule's purpose is not served by blocking discussion of factual issues with a former employee, since the underlying facts do not change with corporate counsel's consent; it also noted the leading contrary case, Sperber, had been vacated and withdrawn.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) of the former Alaska Code of Professional Responsibility, the no-contact rule that is the analog of Model Rule 4.2. It treated Model Rule 4.2 and its comment as the counterpart provision, noting that the version of the Model Rules the Board of Governors had approved (then pending before the Alaska Supreme Court) retained that rule's language and the comment language at issue in the cases the opinion discussed.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 7-104(A)(1) (communication with a represented party) (cf. Model Rule 4.2)

Cases:

• Niesig v. Team I, 559 N.Y.S.2d 493 (1990), purpose of the no-contact rule
• Sperber v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc., No. 82 CIV 7428 (S.D.N.Y. Nov. 21, 1983) (vacated and withdrawn), reading Rule 4.2's comment to cover former employees
• Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36 (D. Mass. 1987), contact with former managerial employees

Other opinions cited:

• Alaska Ethics Opinion 88-3 (reaffirmed on reconsideration)

See also

• AL Ethics Op. 1992-12: Contacting a Former Employee
• Alaska Ethics Op. 94-1: Contacting a Government Board
• ABA Formal Op. 06-443: Contacting Inside Counsel
• AK Bar Ethics Op. 2017-2: Contacting Govt Officials

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/91-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 91-1
Communication with Former Employees
of Corporation Represented by Counsel
(Reconsideration of Ethics Opinion No. 88-3)
The Committee has been asked to re-evaluate Opinion No. 88-3 regarding
communications with former employees of a corporation represented by
counsel. The Committee expressed the view in that opinion that "an attorney
representing an opposing party in a lawsuit against a corporation may contact
former employees of the corporation, including former members of the
corporation's control group, who dealt with the subject matter of the litigation
without permission of corporate counsel." The opinion was qualified to the
extent that counsel could not contact the former employee if that person was
individually represented with regard to the pending matter, and further, the
questioning attorney could not inquire into privileged attorney-client
communications with the former employee. Otherwise, the attorney was free to
"communicate with a former employee of an adverse party if the former
employee is not represented by counsel."
The opinion of the Committee, as expressed in Opinion No. 88-3, is hereby
reaffirmed. Nevertheless, because there are some isolated court opinions
supporting a contrary conclusion, the Committee believes it appropriate to
discuss the rationale behind its opinion and underlying rule, and distinguish
its conclusion from that reached by others considering the issue.
DR 7-104(A)(1) prohibits a lawyer from communicating on the subject of
his representation with "a party" he knows to be represented by another
attorney, without that attorney's consent, or unless authorized by law. The
purpose of that rule is to prevent lawyers from deliberately dodging adversary
counsel to reach - and exploit - that party, thereby obviating the effectiveness
of retained counsel. By doing so, the rule minimizes the likelihood that clients
will make improvident settlements, ill-advised disclosures and unwarranted
concessions against which counsel would advise. Niesig v. Team I, 559
N.Y.S.2d 493 (1990).
The issue is whether former employees of a corporate party are also to be
considered as "parties" under this rule. Since corporate parties act only
through natural persons, it is obvious that some of the current employees must
be classified as parties, or the corporation would be deprived of any protection
under the rule. Consistent with that reasoning, certain categories of
employees, whether described as the

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"control group," or those employees whose acts or omissions are binding on the
corporation, are considered to be "parties" to litigation involving the
corporation.
Frequently confusion occurs in the application of DR 7-104(A)(1) because
the attorney-client privilege is injected into the analysis. This tends to expand
the application of the prohibition because the confidential nature of a
communication is not lost by termination of the representation or resolution of
the matter for which representation was sought. Rather, the privilege
continues and the confidence may not be breached without consent of the
client unless otherwise required by law. But the privilege
does not immunize the underlying factual information, it only protects the
communication between the attorney and client. Opinion No. 88-3 recognizes
the continuing nature of that privilege.
Once it is recognized that the attorney-client privilege does not require
extension of the "party" definition to include former employees, the question is
whether the rationale for the attorney-client privilege would otherwise present a
basis for extending the prohibition of DR 7-104(A)(1) to former employees. The
Committee does not find any compelling reason for that extension.
That is not to say that a former employee could not provide information
that would be damaging to the corporation. Such information would be
prejudicial, however, whether it is disclosed informally or only after more
expensive and perhaps formal procedures are utilized by the party seeking
such information. We do not believe that artificial barriers to the informal
development of such information would promote any policy or objective that
would outweigh the expeditious and less expensive resolution of disputes that
may result from use
of the informal discovery. Because the corporation has unique access to the
information available from its documents and employees, and the best
opportunity to gather information from its employees, the Committee does not
believe any burden is imposed on corporate parties by its interpretation of the
rule.
The Committee is aware of cases which interpret Rule 4.2 of the Model
Rules of Professional Conduct to prohibit ex parte contacts with former
managerial employees of an organization. See Sperber v. Washington HeightsWest Harlem-Inwood Mental Health Council, Inc., No. 82 CIV 7428 (S.D.N.Y.
Nov. 21, 1983) (vacated and withdrawn); Amarin Plastics, Inc. v. Maryland Cup
Corp., 116 FRD 36 (D. Mass. 1987). See also , Miller & Calfo, "Ex Parte
Contact with Employees and Former Employees of a Corporate Adversary: Is It
Ethical?" 42 Bus. Law. 1053 (August 1987); Comment, "Ex Parte
Communications with Corporate Parties: The Scope of the Limitations on
Attorney Communications with One of Adverse Interest" 82 Nw. U.L.Rev. 1274.
Rule 4.21 is the counterpart to DR 7-104(A)(1). The Comment to the Rule
states, inter alia, the following language:

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The Board of Governors for the Alaska Bar Association have approved a
version of the Model Rules of Professional Conduct, and they are presently
pending before the Alaska Supreme Court for adoption. The version adopted by
the Board has retained the language of Rule 4.2, as well as the comment
interpreted by the Sperber court.
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In the case of an organization, this Rule prohibits
communications by a lawyer for one party concerning the
matter in representation with persons having a managerial
responsibility on behalf of the organization,
and with any other
person whose act or omission in connection with
that matter may be imputed to the organization
for purposes of civil or criminal liability or whose statement
may constitute an admission on the part of the organization.
(Emphasis added.)
In Sperber, supra, the court interpreted the language in the comment to
include former employees:
The phrase preceding the second category of the Comment,
"any other person," is plainly broad enough to cover certain
former employees, and there is nothing explicitly limiting the
Comment's application to current employees. Also, in this
case [the former employees] were the individuals who made
and carried out the decision to discharge Sperber. It is their
actions and motives as officers of the organization at the time
which are the subject of plaintiff's claims of discrimination
and which plaintiff will seek to impute to the defendant
organization in order to hold it civilly liable to plaintiff. It
would appear, therefore, that the conversations with [the
former employees] fall into the protection of Rule 4.2 (as
interpreted by the second paragraph of the Comment.)
A majority of the Committee does not agree with the reasoning of the
Sperber court, and it should be noted that the opinion has been vacated and
withdrawn, though for reasons which may be unrelated to the court's analysis
of this policy, objectives of the rule are not advanced by preventing an attorney
from discussing factual issues with a former employee even if those facts may
impute liability to the organization. Presumably those facts will not vary
depending on whether the organization's counsel does or does not consent to
the interview. There is no indication that DR 7-104(A)(1) was intended to
protect organizations from the efficient and unimpaired development of facts
relating to the matter in dispute, and the Committee declines to stretch the
rule's premise in order to reach that result.
Approved by the Alaska Bar Association Ethics Committee on January 3, 1991.
Adopted by the Board of Governors on January 18, 1991.

117MANUL
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