Are a national bank's board members 'management' for the no-contact rule, so adverse counsel cannot interview them without the bank's lawyer's consent?

Currency note

This opinion was adopted in 1984, 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 Treat this page as historical context, not current guidance.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

This opinion clarified Formal Ethics Opinion 83-F-46, which had held that management or administrative employees of a corporate party are treated as adverse parties under the no-contact rule, while lower-level employees are treated as witnesses. The question was whether the members of the board of directors of a national bank are management or administrative individuals who may not be interviewed by adverse counsel without the consent of the bank's attorney while the bank is a represented party in pending litigation.

The opinion observed that the directors are subject to the National Bank Act (12 U.S.C. 73 et seq.) and, under that Act and the bank's bylaws, owe a fiduciary relationship to the bank's shareholders and depositors and have a duty to protect, manage, and administer the bank's assets and business interests. They elect the bank's officers, are given access to confidential business information in the ordinary course of their duties, and collectively exercise their responsibilities, powers, and duties through their individual votes as directors.

The opinion concluded that the bank's directors are included within the scope of the management or administrative agents or employees who may not be interviewed by adverse counsel without the consent of the bank's attorney while the bank is a represented party in pending litigation.

Common questions

Q: Can adverse counsel interview a bank's directors without the bank's lawyer's consent?

A: No. The opinion concluded the directors "are included within the scope of those persons ... who may not be interviewed by the adverse attorney without the consent of the attorney for the bank wherein the bank is a party in pending litigation and represented by counsel."

Q: Why are directors treated as management rather than as witnesses?

A: The opinion pointed to the directors' fiduciary duties under the National Bank Act and the bank's bylaws, their duty to manage and administer the bank's assets, their power to elect officers, and their access to confidential business information.

Q: How does this fit with 83-F-46?

A: It clarifies 83-F-46, which drew the line between management or administrative employees (treated as adverse parties under DR 7-104) and non-management employees (treated as witnesses); the directors fall on the management side of that line.

Background and rules framework

The opinion clarified the Board's application of Disciplinary Rule 7-104 (communicating with a represented party) in Formal Ethics Opinion 83-F-46, addressing where the directors of a national bank (subject to the National Bank Act, 12 U.S.C. 73 et seq.) fall. 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.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• National Bank Act, 12 U.S.C. 73 et seq. (duties of national bank directors)

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-46, the management/witness line under the no-contact rule

See also

• Tennessee Op. 83-F-46: Interviewing a Corporate Defendant's Non-Management Employees
• Tennessee Op. 83-F-46(b): Interviewing a Defendant Hospital's Nurses
• ABA Formal Op. 91-359: Contacting an Adverse Corporation's Former Employees

Source

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

Original opinion text

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

83-F-46(a) - Interviewing Board of Directors

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-46(a)

Inquiry is made for a clarification of Formal Ethics Opinion 83-F-46 relating to whether members of the board of directors of a national bank are management or administrative individuals who may not be interviewed by the adverse attorney without the consent of the attorney for the bank wherein the bank is a party in pending litigation and represented by counsel.

The directors of the bank are subject to and covered by the provisions of the National Bank Act, 12 USC Section 73 et seq. As such, they have a fiduciary relationship to the shareholders and depositors of the bank under the National Bank Act and bylaws of the bank and have a duty to protect, manage and administer the assets and business interests

of the bank in compliance therewith and any applicable regulations properly promulgated by governmental agencies responsible for the regulation of national banks. They also elect officers of the bank. Furthermore, the directors are given access to confidential business information during the ordinary course of their duties as directors. As members of the board of directors, they collectively exercise, through their individual votes as directors, their responsibilities, powers and duties conferred to and imposed upon them by law.

Accordingly, the members of the board of directors of the bank are included within the scope of those persons identified in level agents or employees who may not be interviewed by the adverse attorney without the consent of the attorney for the bank wherein the bank is a party in pending litigation and represented by counsel.

This 13th day of March , 1984.

ETHICS COMMITTEE:

G. Wilson Horde

T. Maxfield Bahner

Charles T. Herndon, III

APPROVED AND ADOPTED BY THE BOARD