Can a plaintiff's lawyer contact a corporate defendant's former employees ex parte when those employees' alleged negligence is at issue?

Plain-English summary

Client A sued Corporation X, alleging that at the time of a specific incident certain employees were negligent; the employees' names and involvement came from answers to interrogatories, and the three employees now work for other employers. A's lawyer wanted to contact them ex parte. The questions were whether that contact is an ethical violation, and if so whether X's attorney must report it.

The committee noted that contact with former employees of an adverse party is sometimes permissible. It cited Advisory Opinion 91-12 (a lawyer may contact a former employee who had no decision-making authority and obtained no relevant privileged information) and ABA Formal Opinion 91-359 (a lawyer adverse to a represented corporate party may, without violating Model Rule 4.2, communicate with an unrepresented former employee without the corporation's lawyer's consent, while not inducing the former employee to violate any attorney-client privilege). But it held those liberal allowances do not reach this situation, because the complaint addresses allegations specifically to these employees' acts and omissions, which would be imputed to Defendant X. Quoting the Comment to Rule 4.2, the committee explained that for an organization the rule bars contact, without the organization's counsel's consent, with persons having managerial responsibility and with any person whose act or omission in connection with the matter may be imputed to the organization for civil or criminal liability or whose statement may constitute an admission. An exception applies if an employee has retained his or her own counsel, whose consent then suffices. On the second question, the committee turned to Rule 8.3(a), which requires reporting another lawyer's violation that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness; it quoted the Comment that not every violation must be reported and that a measure of judgment is required, so X's attorney must use judgment in deciding whether to report. The committee added that if contact with the first employee is a violation, contact with the other two is as well, and that the number of contacts should not change the reporting analysis, because "substantial" refers to the seriousness of the possible offense, not the quantum of evidence the lawyer has.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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: Can a lawyer contact an adverse corporation's former employees ex parte?

A: The committee said sometimes, citing Opinion 91-12 and ABA Formal Opinion 91-359, but not here: where the complaint targets the employees' own acts and omissions, those are imputed to the corporation and Rule 4.2 bars contact without the corporation's counsel's consent.

Q: What makes these former employees off-limits under Rule 4.2?

A: The committee pointed to the Comment to Rule 4.2, which reaches any person whose act or omission in the matter may be imputed to the organization for civil or criminal liability or whose statement may be an admission, exactly the employees the complaint accuses.

Q: Is there any way to contact such an employee?

A: The committee noted the Comment's exception: if the employee has retained his or her own counsel, that counsel's consent to the communication is sufficient.

Q: Must opposing counsel report the violation?

A: The committee said it is a judgment call under Rule 8.3(a), which requires reporting only violations raising a substantial question about a lawyer's honesty, trustworthiness, or fitness; "substantial" refers to the offense's seriousness, not how much evidence the lawyer has.

Background and rules framework

The opinion applied Rule 4.2 (communication with a person represented by counsel) and Rule 8.3(a) (reporting professional misconduct), each corresponding to the like-numbered Model Rule. The Rule 4.2 analysis turned on the Comment's imputation and admission standards for organizational parties; the Rule 8.3 analysis turned on the Comment's "substantial question" and judgment standards.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: a lawyer may not communicate about the subject of the representation with a represented person without that person's counsel's consent; for organizations, the Comment reaches managerial agents and those whose acts may be imputed or whose statements may be admissions.
• South Carolina RPC 8.3(a) / Model Rule 8.3: a lawyer must report another lawyer's violation that raises a substantial question as to honesty, trustworthiness, or fitness.

Other opinions cited:

• SC Bar Advisory Opinion 91-12: a lawyer may contact a former employee who had no decision-making authority and no relevant privileged information.
• ABA Formal Opinion 91-359: contact with an unrepresented former employee of a corporate party does not violate Model Rule 4.2.

See also

• SC Bar Ethics Op. 01-01: Ex Parte Contact With a Represented Company's Former Employee
• SC Bar Ethics Op. 05-04: When to Report a Suspected Double-Biller

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-31/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-31

Client A sues Corporation X. The Complaint alleges that at the time of the specific incident, certain employees were negligent in several particulars. The names of the employees and their involvement are found in Answers to Interrogatories. The three employees involved in the incident are now working for other employers. Client A's attorney would like to contact the employees to discuss the case ex parte.

Issue:

1. Is such an ex parte contact an ethical violation?
2. If this contact constitutes an ethical violation on the part of Client A's attorney, is the attorney for Corporation X required to report it?

Summary:
In this factual situation, A's attorney may not contact these employees. The attorney for "X" would have to use his judgment in deciding whether to report the violation, depending on whether a substantial question as to the lawyer's fitness has been raised.

Opinion:
In certain instances, there may be no prohibition against A's attorney contacting these employees who are no longer employed by the Defendant. Advisory Opinion 91-12 suggests that a lawyer may contact a former employee of an adverse party, at least as long as the former employee had no decision-making authority and had not obtained any relevant privileged information. ABA Formal Opinion 91-359 adopted a liberal view toward permitting contact with former employees: "A lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer".

The ABA noted in this Opinion that the lawyer should not "seek to induce the former employee to violate" any attorney/client privilege attaching to communications made as an employee to corporate counsel. This ABA Opinion went on to infer from the comment to Rule 4.2 that "communication with all other employees on the matter in representation is permissible without consent." Advisory Opinion interview current employees of an adverse corporate party without the consent of corporate counsel if the employees have no authority to bind the employer with regard to the matter at issue.

Although the Rules attempt to be liberal with regard to former employees and even current employees with no decision- making authority, this factual situation points out that there are instances in which restrictions would apply. The problem here is that there are allegations addressed specifically to the acts and omissions of these employees. These acts and omissions would be imputed to Defendant X.

The Comment to Rule 4.2 states that in the case of an organization such as a corporation, the Rule prohibits contact, without consent of the organization's counsel, "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." An exception may be made if any of the employees has retained an attorney. The Comment to Rule 4.2 states that "if an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule." The second issue addresses whether the attorney for X is required to report the violation if the above conduct constitutes an ethical violation on the part of A's attorney.

Rule 8.3(a) states that "a lawyer having knowledge that another lawyer has committed a violation of he rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

The Comment goes on to say that it has been enforceable to require reporting of every violation of the Rules. The Comment states, "this rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule." Finally, with this factual situation, it would seem that if contact with the first employee is an ethical violation, then contact with the other two would also be a violation. As to reporting of the violation, the fact that contact has been made with all three should not make a difference. This is because in the Comment to Rule 8.3, it is stated, "the term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware."