Can I interview a former employee of the adverse corporation ex parte, without going through its counsel?

Plain-English summary

The inquiring attorney asked what conduct is permissible when performing discovery involving former employees of parties in litigation.

The panel took the position that the Rhode Island Rules of Professional Conduct do not prohibit attorneys and their agents from conducting ex parte interviews of former employees of an adverse corporate party. The panel noted that the ABA Standing Committee on Ethics and Professional Responsibility had issued Formal Opinion 91-359, "Contact with Former Employee of Adverse Corporate Party," which concludes that Rule 4.2 does not prohibit ex parte interviews of former employees of an adverse corporate party. The panel observed that courts have recognized that Rule 4.2 was not meant to cover a corporate party's former employees, but applies only when a "party" witness is involved, citing Polycast Technology Corp. v. Uniroyal, Inc. and Amand Properties v. Alcoa.

The panel added that Rule 4.3, "Dealing with Unrepresented Person," requires that when dealing with a person who is not represented by counsel, the lawyer make no misrepresentation of disinterest and, if the lawyer becomes aware of a misunderstanding, make reasonable efforts to correct it.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 4.2 and 4.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can I interview the adverse corporation's former employees without its lawyer present?

A: Per the opinion, yes. The Rhode Island rules do not prohibit ex parte interviews of former employees of an adverse corporate party, because Rule 4.2 was not meant to cover a corporate party's former employees.

Q: What authority did the panel rely on?

A: Per the opinion, ABA Formal Opinion 91-359 and court decisions, including Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621 (S.D.N.Y. 1990), which recognize that Rule 4.2 applies only when a "party" witness is involved.

Q: Do any rules still constrain the interview?

A: Per the opinion, yes. Rule 4.3 requires the lawyer to make no misrepresentation of disinterest and, on becoming aware of a misunderstanding of the lawyer's role, to make reasonable efforts to correct it.

Background and rules framework

The opinion applies Rhode Island Rules 4.2 and 4.3, corresponding to Model Rules 4.2 (communication with a person represented by counsel) and 4.3 (dealing with an unrepresented person). The panel read Rule 4.2's bar as limited to current "party" witnesses, so it does not reach an adverse corporation's former employees. Contact with those former employees, where unrepresented, remains governed by Rule 4.3's requirements against misrepresenting the lawyer's role.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 4.3 (dealing with unrepresented person)
• RI RPC 4.2, RI RPC 4.3

Statutes:

• None cited.

Cases:

• Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990), Rule 4.2 does not bar contact with an adverse corporation's former employees.
• Amand Properties v. Alcoa, Civ. No. 86-1839 (D.N.J. Jan. 28, 1991), same.

Other opinions cited:

• ABA Formal Op. 91-359 ("Contact with Former Employee of Adverse Corporate Party"): Rule 4.2 does not prohibit ex parte interviews of an adverse corporate party's former employees.

See also

• RI EAP Op. 2000-09: Direct Contact With State-Agency Employees Under Rule 4.2
• RI EAP Op. 90-08: Cannot Contact a Represented Salesperson Absent Opposing Counsel's Consent
• RI EAP Op. 2002-04: Rule 4.2 Contact After Discharge and File Transfer

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-74.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-74, Request #194
Issued October 1991

An attorney seeks Panel advice as to permissible conduct by attorneys when performing discovery involving former employees of parties in litigation.

The Panel takes the position that the Rhode Island Rules of Professional Conduct do not prohibit attorneys and their agents from conducting ex parte interviews of former employees of an adverse corporate party. Also, the ABA Standing Committee on Ethics and Professional Responsibility issued formal Opinion 91-359 entitled "Contact with Former Employee of Adverse Corporate Party" which concludes that Rule 4.2 does not prohibit ex parte interviews of former employees of an adverse corporate party. Courts have recognized that Rule 4.2 was not meant to cover a corporate party's former employees, but is applicable only when a "party" witness is involved. Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990), Amand Properties v. Alcoa, et al., Civ. No. 86-1839 (D.N.J. January 28, 1991).

Rule 4.3, entitled "Dealing with Unrepresented Person," requires only that when dealing with a person who is not represented by counsel, the lawyer shall 1) make no misrepresentation of disinterest and 2) if the lawyer becomes aware that there is a misunderstanding, then the lawyer shall make reasonable efforts to correct the misunderstanding.