Ethics Forum: Questions and Answers on Professional Responsibility
I sued a corporation and I noted a manager/officer of the corporation no longer is employed. I wish to speak to that person about the facts of the underlying lawsuit I have brought against the corporation. Can I do so without violating Rule of Professional Conduct 4.2?
October 11, 2018 at 01:03 PM
9 minute read
An attorney involved in suing a corporation can speak to former employees, but there are limits.
I sued a corporation and I noted a manager/officer of the corporation no longer is employed. I wish to speak to that person about the facts of the underlying lawsuit I have brought against the corporation. Can I do so without violating Rule of Professional Conduct 4.2?
As any lawyer should know, the Rule of Professional Conduct 4.2 prohibits communication with a person represented by counsel. Under Comment 7 to Rule 4.2, if the corporation or organization is subject to litigation, the constituents of that organization who supervise it, direct, or regularly consult with an organization's lawyer concerning the matter or who in the corporation have authority to bind the organization with respect to issues in the case would be prohibited people and the lawyer could not speak with them. But, the comment also notes as follows: “Consent of the organization's lawyer is not required for communication with a former constituent.”
That means if no longer employed by the corporation then the counsel has a right to speak to the former employee directly. But, there are some limitations. A lawyer, clearly when contacting a former employee, must advise the employee who the lawyer represents. A lawyer cannot mislead the former employee. A lawyer cannot take advantage of the employee. Rules of Professional Conduct, Rules 4.3 and 4.4, would prohibit improper conduct by a lawyer under those circumstances.
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