Can a plaintiff's lawyer interview a corporate defendant's non-management employees about the facts without the consent of the company's lawyer?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

A plaintiff's attorney asked whether he could interview non-management or non-administrative employees of a corporate defendant, to determine the facts of a disputed matter, without the knowledge or consent of the corporation or its attorney.

The opinion set out Disciplinary Rule 7-104(A)(1), which bars a lawyer, during a representation, from communicating about the subject of the representation with a party the lawyer knows to be represented by counsel, absent that counsel's prior consent or legal authorization. It explained that a lawyer may generally interview witnesses or prospective witnesses for opposing sides without opposing counsel's consent, and that non-management and non-administrative employees of an adverse party are to be considered witnesses, so DR 7-104(A)(1) does not apply to them. Management and administrative employees, by contrast, are to be considered and treated as adverse parties, and DR 7-104(A)(1) fully applies to them, citing ABA Informal Opinion 1377.

The opinion concluded that there is no impropriety in a plaintiff's attorney interviewing non-management or non-administrative employees of a corporate defendant without the knowledge or consent of the corporation or its attorney, provided the attorney identifies himself and informs the employee of the controversy and the reason for the inquiry before the interview.

Common questions

Q: Can a plaintiff's lawyer interview a company's lower-level employees without the company's lawyer's consent?

A: Yes. The opinion found "no impropriety in the plaintiff's attorney interviewing non-management or nonadministrative level employees of a corporate defendant without the knowledge or consent of the corporation or its attorney," provided the attorney identifies himself and explains the controversy first.

Q: Does the no-contact rule cover a company's managers?

A: Yes. The opinion held that "management or administrative level employees of an adverse party are to be considered and treated as adverse parties," so DR 7-104(A)(1) "fully appl[ies]" to them and they may not be contacted without consent.

Q: What must the lawyer do before interviewing a non-management employee?

A: Per the opinion, identify himself and inform the employee of the controversy and the reason for the inquiry before the interview.

Background and rules framework

The opinion applied Disciplinary Rule 7-104(A)(1) (communicating with a represented party) of the Tennessee Code of Professional Responsibility, together with ABA Informal Opinion 1377. The modern correlate is Model Rule 4.2 (communication with a person represented by counsel), noted here as a navigational cross-reference rather than a rule the opinion itself applied. The Board clarified this opinion in 83-F-46(a) (bank directors) and 83-F-46(b) (hospital nurses).

Citations and references

Rules of Professional Conduct:

• DR 7-104(A)(1) (communicating with a represented party), Tennessee Code of Professional Responsibility
• Model Rule 4.2 (communication with a represented person), modern correlate

Other opinions cited:

• ABA Informal Opinion 1377, management-level employees treated as parties under the no-contact rule

See also

• Tennessee Op. 82-F-27: The No-Contact Rule Does Not Bar Interviewing Non-Management State Employees
• Tennessee Op. 83-F-46(a): Contacting a Bank's Board of Directors
• Tennessee Op. 83-F-46(b): Interviewing a Defendant Hospital's Nurses
• ABA Formal Op. 95-396: The No-Contact Rule (Rule 4.2)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-46

Original opinion text

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

83-F-46 - Interviewing non-management employees

BOARD OF PROfESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-46

Inquiry is made by the plaintiff's attorney concerning the propriety of interviewing non-management or non-administrative level employees of a corporate defendant, to determine the facts of a disputed matter, without the knowledge or consent of the corporation or its attorney.

Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility provides as follows:

DR 7-104 Communicating With One of Adverse Interest.

(A) During the course of his representation of a client, a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Generally, a lawyer may interview witnesses or prospective witnesses for opposing sides without the prior consent of opposing counsel.

Non-management and non-administrative level employees of an adverse party are to be considered as witnesses. The provisions of DR 7-104(A)(1) do not apply to witnesses. However, the management or administrative level employees of an adverse party are to be considered and treated as adverse parties. The provisions of DR 7-104(A)(1) fully apply to management and administrative level employees. See ABA Informal Opinion 1377.

There is no impropriety in the plaintiff's attorney interviewing non-management or nonadministrative level employees of a corporate defendant without the knowledge or consent of the corporation or its attorney, provided the attorney identifies himself and informs the employee of the controversy and the reason for the inquiry prior to the interview.

This 14th day of April , 1983.

ETHICS COMMITTEE:

F. Evans Harvill

Oscar B. Hofstetter, Jr.

William R. Willis