Can a defendant's lawyer interview, ex parte, a former control-group employee of the opposing corporation whose statements could bind that corporation?

Plain-English summary

In a suit between two corporations alleging breach of implied warranty and negligence, the defendant raised the plaintiff's contributory negligence (without filing a counterclaim) and wanted to interview, ex parte, a former employee of the plaintiff. That former employee had been a member of the plaintiff's "control group" while employed and could speak to the plaintiff's contributory negligence, although the defendant did not expect that the former employee's own acts or statements while employed constituted the plaintiff's negligence. The question was whether the defendant's lawyers could interview him ex parte.

The committee concluded they could not. It assumed the former employee was unrepresented (noting that if he were represented, Rule 4.2 would bar contact absent the lawyer's consent). The key factor was the potential effect of the former employee's statements. Quoting the comment to Rule 4.2, the committee observed that for an organization the rule prohibits a lawyer from communicating about the matter with persons having managerial responsibility, and with any person whose act or omission in the matter may be imputed to the organization or whose statement may constitute an admission by the organization.

Applying that language, the committee found the contact would not be allowed. Because of the former employee's past managerial responsibilities concerning the matter in litigation, the plain language of Rule 4.2 barred the ex parte contact. The committee added that, given he could testify to the plaintiff's contributory negligence and had been a control-group member, his admissions could bind the plaintiff corporation and his statements could be imputed to it, so the contact was proscribed regardless of whether his own conduct was the subject of the litigation.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 opposing counsel interview a former employee of the other corporate party ex parte?

A: Not where the former employee held control-group or managerial responsibility over the matter. The committee concluded Rule 4.2 barred ex parte contact because his admissions could bind, or be imputed to, the corporation.

Q: Does it matter that the former employee's own conduct was not the alleged negligence?

A: No. The committee concluded the contact was proscribed regardless of whether his conduct was the subject of the litigation, because his statements could still constitute an admission imputed to the corporation.

Q: What if the former employee is represented by his own lawyer?

A: The committee noted that if he is represented in the matter, Rule 4.2 bars the defendant from discussing the case with him except with authorization or that lawyer's consent.

Background and rules framework

The opinion interpreted South Carolina RPC 4.2 (SCACR 407), corresponding to Model Rule 4.2, which restricts a lawyer's communications with a represented person, and quoted the rule's comment addressing communications with an organization's managerial agents and those whose acts or statements may be imputed to, or constitute admissions by, the organization.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 (SCACR 407) / Model Rule 4.2: communication with a represented person, including agents of an organization.

See also

• SC Bar Ethics Op. 01-01: Contacting Former Employees
• SC Bar Ethics Op. 98-25: Attending a Meeting With a Party

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-36/

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 97-36

Plaintiff has filed a Complaint alleging breach of implied warranty and negligence against Defendant. Defendant alleged that Plaintiff's contributory negligence was of the magnitude to bar the Plaintiff 's claim, but no counterclaim was filed. Both entities are corporations. The Defendant's attorneys wish to interview a former employee of the Plaintiff ex parte. This former employee was a member of the Plaintiff's "control group" while employed with the Plaintiff. The Defendant does not anticipate that any acts or statements of the former employee while employed constitute the Plaintiff's negligence. The former employee may be able to speak to the issue of the Plaintiff's contributory negligence.

QUESTION:
May the Defendant's attorneys conduct an ex parte interview of this former employee of the Plaintiff?

SUMMARY:
Defendant corporation's attorneys may not conduct an ex parte interview of a former employee of the Plaintiff's corporation if the former employee was a member of the Plaintiff's "control group" and his admissions may bind the Plaintiff s corporation.

OPINION:
If the former employee is represented by an attorney in this matter, the Defendant may not discuss the case except with authorization or the attorney's consent. Rule 4.2, SCACR 407. For purposes of this opinion, the assumption is that the former employee is not represented. The key fact in determining this opinion involves the potential effect of the former employee's statements. The comment to Rule 4.2 states: "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 admission 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."

In this set of circumstances, contact of this witness by the defendant's attorney would not be allowed. The plain language of Rule 4.2 bars this ex parte contact with this former employee because of his past managerial responsibilities concerning the matter in litigation.

Further, this former employee is able to testify as to the issue of the Plaintiff's contributory negligence. Considering that he is also a former member of the Plaintiff's "control group", it is possible that his admissions would bind the Plaintiff corporation. Also, his statements may be imputed to the Plaintiff corporation.

These factors would cause the Defendant's attorneys' ex parte contact with this witness to be proscribed regardless of whether the employee's conduct is the subject of the litigation.