Can a lawyer suing a corporation or government entity contact its employees directly without the entity's lawyer's consent?

Plain-English summary

The committee addressed how the no-contact rule applies to the employees of a represented corporation or governmental entity. The governing principle, DR 7-104(A)(1), bars a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by counsel, absent that counsel's consent; its general application had been set out in KBA E-65.

Applying that rule to corporate employees, the committee drew a line based on access to the entity's privileged or confidential information. The restriction applies, beyond doubt, to any corporate officer, member of the board of directors, or management employee with access to privileged or confidential information. If the adversary lawyer can independently determine that a management employee or hourly wage earner does not have access to privileged or confidential information, that person may be contacted. Where the lawyer cannot truly determine the employee's relationship to the entity or whether the employee has such access, the committee said it is necessary to inquire through the entity's proper officials, who are represented by counsel, so the person to contact first is the opposing lawyer for the corporation or governmental agency. Invoking Canon 7, the committee added that zealous representation must stay within the bounds of the law and noted that the Rules of Civil Procedure provide for discovery from any employees, so any question about an employee's relationship to the entity should be resolved by contacting the entity's lawyer before taking statements.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer suing a company contact its president or managers directly?

A: No, not without the company's lawyer's consent. The committee held the no-contact rule reaches any officer, director, or management employee with access to the entity's privileged or confidential information.

Q: Can the lawyer contact rank-and-file employees with no access to confidential information?

A: Yes. The committee said employees (including hourly wage earners) who have no access to privileged or confidential information may be contacted by the adversary lawyer.

Q: What if it is unclear whether an employee has access to confidential information?

A: The committee said the lawyer must inquire through the entity's officials, and because they are represented, the person to contact first is the entity's lawyer, before taking any statement.

Background and rules framework

The opinion applies DR 7-104(A)(1), the former Code's no-contact rule, to communications with the employees of a represented organization, with Canon 7 framing the duty of zealous representation as bounded by law. The modern analog is Model Rule 4.2 (communication with a person represented by counsel), whose comments draw similar lines around an organization's constituents.

Citations and references

Rules of Professional Conduct:

• DR 7-104(A)(1) (communication with a represented party) and Canon 7; modern analog Model Rule 4.2

Other opinions cited:

• KBA E-65 (general application of DR 7-104)

See also

• KBA Ethics Op. E-212: Former Government Lawyer Conflicts
• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel
• No additional sibling opinions yet indexed.

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-213.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-213
Issued: March 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Opinion KBA E-213
Question 1:

May a lawyer who has a suit pending against a corporation or governmental entity contact the President, General Manager, or other employee having access to confidential matters without prior consent of the other lawyer?

Answer 1:

No.

Question 2:

May a lawyer who is presently suing a corporation or governmental entity contact employees who are not managing agents and hourly wage earners that have no access to privileged or confidential information?

Answer 2:

Yes.

References:

Opinion KBA 65; DR 7-104
OPINION

The general proposition of communicating with one of adverse interest is set out in DR 7-104(A)(l), which simply states that an attorney shall not communicate on the subject of the representation with the party he knows to be represented by a lawyer unless he has prior consent of the lawyer representing the other party. The general application of DR 7-104 is set out in Opinion KBA E-65.
The question before us today is to what extent this restrictive communication applies to employees of a corporation. Beyond a doubt, the restriction would apply to any corporate officer, member of the Board of Directors or any management employee with access to any privileged or confidential information of the corporation. If any attorney can independently determine that a management employee or hourly wage earner does not have any access to privileged or confidential information, they may be contacted by an adversary attorney.
If an opposing attorney cannot truly find out the relationship of any employee with the employer corporation and whether or not the employee has any access to privileged or confidential information, it will be necessary to inquire through the proper officials of the

corporation. Since the proper officials of the corporation are represented by an attorney, the proper individual to contact before questioning any doubtful employee would be the opposing attorney for the corporation or governmental agency.
To paraphrase Canon 7 of the Code, even though a lawyer has a duty to represent his client zealously, it must be within the bounds of the law. The Rules of Civil Procedure provide for discovery of relevant information from any employees of any corporation. Therefore, if there is any question concerning the relationship of an employee to the corporation or governmental entity, it is necessary to contact the attorney of the corporation before taking any statements from the employee or from questioning any employee of the adversary corporation.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.