Can a lawyer contact a represented former employee of the opposing corporation just to learn the name of that employee's personal counsel, and is the employee's counsel's consent enough to talk further?

Plain-English summary

A plaintiff's attorney wanted to communicate with a former employee of the defendant corporation. Corporate counsel had told the attorney that the former employee had retained personal counsel, but did not know that lawyer's name. The attorney therefore knew the former employee was represented in the matter but could not identify the lawyer from whom to seek consent. The inquiry asked whether the attorney could contact the former employee just to obtain the name of his counsel and in what form, whether corporate counsel had to be told, and whether, with the employee's counsel's consent, the attorney could freely communicate even where the employee's statements might be an admission imputed to the corporation.

The committee analyzed Rule 4.2, which bars communicating about the subject of the representation with a party the lawyer knows is represented by another lawyer, absent that lawyer's consent or legal authorization. It concluded the attorney may contact the former employee for the sole purpose of obtaining the name of his personal counsel, with a written communication being the more prudent method, because that limited contact is not "about the subject of the representation." Once the employee's lawyer is identified, the attorney need not seek corporate counsel's permission to contact that lawyer, and corporate counsel need not be informed of any communication with the former employee that the employee's lawyer authorizes.

On the third question, the committee concluded that with the consent of the former employee's lawyer, the attorney may freely communicate with the former employee, citing ABA Formal Opinion 95-396 and the comment to Rule 4.2 that an organization agent's own counsel's consent suffices. It added that the former employee's prior status with the corporation is not germane, because his statements would not be binding admissions or a basis for imputing liability to the corporation, citing South Carolina and Federal Rule of Evidence 801(d)(2)(B) and ABA Formal Opinions 91-359 and 95-396.

Currency note

This opinion was issued in 1998, 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 a represented person just to find out who their lawyer is?

A: The committee concluded yes. Contacting the former employee solely to obtain the name of his personal counsel is not a communication "about the subject of the representation," so Rule 4.2 does not bar it; a written request is more prudent.

Q: Does the lawyer have to notify the corporation's counsel of the contact?

A: No. The committee concluded corporate counsel need not be informed of any communication with the former employee that the employee's own lawyer has authorized.

Q: Once the employee's lawyer consents, can the plaintiff's lawyer talk freely with the former employee?

A: Yes. The committee concluded the employee's lawyer's consent is sufficient under Rule 4.2, and the former employee's status does not change the analysis because his statements are not binding admissions imputed to the corporation.

Background and rules framework

The opinion applied South Carolina RPC 4.2, corresponding to Model Rule 4.2, on communication with a represented person, and its comment that an organization agent's own counsel may consent to communication. It distinguished a former employee whose statements would not bind the corporation, citing Rule of Evidence 801(d)(2)(B) and ABA Formal Opinions 91-359 and 95-396.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: communication with a represented person; consent of the person's own counsel.

Rules of evidence:

• S.C. and Fed. R. Evid. 801(d)(2)(B): cited in the opinion on admissions and a former employee's statements.

Other opinions cited:

• ABA Formal Opinion 95-396 (1995): communication with represented persons; consent of agent's counsel.
• ABA Formal Opinion 91-359 (1991): contacting a former employee of a represented organization.

See also

• SC Bar Ethics Op. 97-36: Ex Parte Former Employee
• SC Bar Ethics Op. 01-01: Contacting Former Employees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-19/

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 98-19

A plaintiff's attorney wishes to communicate with a former employee of defendant corporation. The plaintiff's attorney has been informed by the corporation's counsel that the former employee has retained personal counsel. The corporation's counsel, however, is not aware of the name of the former employee's counsel. The plaintiff's attorney, therefore, knows that the former employee is represented by counsel in the matter.

QUESTIONS:

1. May plaintiff's attorney under these facts communicate directly with the former employee for the limited purpose of gaining the name of the former employee's personal counsel? And if so, what form may such communication take?
2. Need the plaintiff's attorney inform the corporation's counsel of the communication with the former employee given the corporation's counsel's knowledge of the former employee's retention of personal counsel in the matter?
3. May plaintiff's attorney freely communicate with the former employee with the consent of the employee's personal counsel when the former employee's statements may constitute an admission on the part of the corporation or otherwise impute liability to the corporation?

SUMMARY:
Plaintiff's attorney may communicate with former employee for the sole purpose of obtaining the name of the former employee's personal counsel. A written communication would be the more prudent method of communication. Corporate counsel need not be informed of any communication with former employee authorized by former employee's lawyer. Former employee's prior status with the corporation is not germane to the analysis as any statements made by the former employee would not be binding admissions nor the basis of imputed liability to the corporation.

DISCUSSION:
Rule of Professional Conduct 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the lawyer or is authorized by law to do so.
Under the current facts, plaintiff's attorney wishes to communicate with former employee (presumably about the subject of the representation) and knows former employee is represented by another lawyer. Plaintiff's attorney is in the perplexing position of not knowing the identity of former employee's lawyer from whom consent to communicate may be obtained.
Plaintiff's attorney may communicate with the former employee for the sole purpose of obtaining the name of the former employee's personal counsel. A written communication with the employee to obtain this information would be the more prudent method. Such communication will not be "...about the subject of the representation."

Once the identity of former employee's lawyer is learned, plaintiff's attorney is under no obligation to seek permission from corporate counsel to contact former employee's lawyer. Further, corporate counsel need not be informed of any communication with former employee authorized by former employee's lawyer.

Upon authorization and consent from former employee's lawyer, plaintiff's attorney may freely communicate with former employee. See ABA Formal Opinion 95-396(1995). The Comment to Rule 4.2 explicitly states: "If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent of that counsel to a communication will be sufficient for purposes of this Rule." Former employee's prior status with the corporation is not germane to the analysis as any statements made by former employee would not be binding admissions nor the basis of imputed liability to the corporation. See South Carolina and Federal Rule of Evidence 801(d)(2)(B). See generally, ABA Formal Opinions 91-359 (1991) and 95-396 (1995).