In Kentucky, may an employer's lawyer contact an EEOC complaining-witness employee without the EEOC counsel's consent during a pending enforcement action?

Plain-English summary

The EEOC had filed an action under 42 U.S.C. 2000e-5(f) against a lawyer's client, the employer, and the affected employee had not intervened. The lawyer asked whether he or she could contact the employee without the EEOC counsel's consent, or over the EEOC counsel's objection. The Committee gave a qualified yes.

The opinion framed the question around two issues: the relationship between the enforcement agency and the employee/complaining witness, and the risk of contacting that witness on matters related in subject but not in forum, statute, or regulation to the existing action. To avoid violating Rules 4.2 and 4.3, the Committee placed the burden on counsel to determine the nature of the agency-witness relationship. If the agency states that it represents the employee, the employee should be considered represented and Rule 4.2 applies (barring contact without the agency's consent). If the agency refuses to state a position or responds that it does not represent the employee individually, Rule 4.3 applies and counsel may proceed accordingly. The opinion also proposed adding a second paragraph to the Comment following Rule 4.3, stating that a complaining witness may be considered unrepresented in other potential claims where the agency declines individual representation, and that counsel may take no action that would directly or indirectly compromise the nature or purpose of the original action.

Currency note

This opinion was issued in 1994, before Kentucky's adoption of the 2002 Ethics 2000 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Could the employer's lawyer contact the complaining-witness employee directly?

A: Only conditionally. Per the opinion, the lawyer had to first determine whether the EEOC represented the employee individually; Rule 4.2 barred contact if so, and Rule 4.3 governed if not.

Q: Who had to figure out whether the employee was represented?

A: Counsel. The opinion put the responsibility on the lawyer seeking contact to determine the nature of the relationship between the agency and the employee.

Q: What if the EEOC refused to state a position?

A: The opinion treated a refusal to state a position, or a negative answer, as triggering Rule 4.3, allowing counsel to proceed as with an unrepresented person, subject to not compromising the original action.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a represented person; Model Rule 4.2) and KRPC 4.3 (dealing with an unrepresented person; Model Rule 4.3) in the context of an agency-prosecuted enforcement action where the individual witness has not intervened. Which rule applies turns on whether the agency individually represents the witness.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / KRPC 4.2 (communication with a person represented by counsel)
• MR 4.3 / KRPC 4.3 (dealing with an unrepresented person)

Statutes:

• 42 U.S.C. 2000e-5(f) (EEOC civil enforcement actions)

See also

• KBA Ethics Op. E-382: Ex Parte Contact With a Represented Organization's Current Employees
• KBA Ethics Op. E-381: Ex Parte Contact With an Adverse Organization's Former Employees
• KBA Ethics Op. E-392: Corporate Counsel Contacting a Represented Employee

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-372.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-372
Issued: November 1994

The Rules of Professional Conduct are amended periodically. Lawyers should consult
the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

Pursuant to 42 USC Sec. 200e-5(f) the EEOC has filed an action against lawyer's
client, the employer, and the affected employee has not intervened. Lawyer asks
if he or she may contact employee without the consent of the EEOC counsel, or
over the objection of the EEOC counsel.

Answer:

Qualified yes.

References:

Kentucky Rules of Professional Conduct 4.2 and 4.3
OPINION

The question presented consists of two parts: (1) the relationship the enforcement agency,
in this case the EEOC, has to the employee/complaining witness and (2) the risks inherent in
allowing counsel for the employer to contact the employee/complaining witness on matters
related by subject matter but not forum, statute or regulation to an existing enforcement action.
To avoid the prohibitions of Rule 4.2 & 4.3, it is counsel's responsibility to determine the nature
of the relationship between the enforcement agency and the employee/complaining witness.
Where the enforcement agency responds in the affirmative to counsel's inquiry, the
employee/complaining witness should be considered to be represented and Rule 4.2 applies.
Where the enforcement agency refuses to state a position concerning individual representation of
the employee/complaining witness or responds in the negative then Rule 4.3 applies and counsel
may proceed accordingly.
COMMENT
[We suggest that the Comment following Rule 4.3 be expanded with the addition of a
second paragraph as follows:]
(2)
A complaining witness in an action which by its nature gives rise
to the possibility of additional claims by the person in other forums may be
considered to be unrepresented in such other claims where the original
enforcement agency fails or refuses to accept representation of the person
individually. It is counsel's obligation to determine whether the person is
represented individually by the agency. Counsel may take no action in contacting
the unrepresented person and attempting to resolve such other claims when such
activity would have the effect, directly or indirectly, or compromising or
obviating either the nature or the purpose of the original action.

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.