PARTY FOUL: AVOIDING EX-PARTE COMMUNICATIONS WITH CURRENT EMPLOYEES OF A DEFENDANT EMPLOYER
January 18, 2023
Reading time: 2 minutes
As the attorney for an individual employee, you may be tempted to reach out to current company employees and your client’s former co-workers before suit is filed. After all, they would be the best sources of information about your client’s case and potentially helpful witnesses. However, any opportunity for such ex-parte communications are generally prohibited by the Model Rules of Professional Conduct – and an invitation you should decline.
ABA Model Rule 4.2 prohibits attorneys from communicating with a person who is known to be represented by another attorney about the subject matter of the representation, unless that attorney has given consent or you are authorized by law or a court to speak with that person. Comment 7 of Rule 4.2 provides that if the represented person is an organization, this Rule extends to any employee of the company who would fit into one of the following categories:
- an employee of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter; or
- an employee who has authority to obligate the organization with respect to the matter; or
- an employee whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
To make direct contact with any such employee, would be considered a blatant ex-parte communication prohibited by Rule 4.2. But it begs the question, could you speak to a current employee who doesn’t fall into one of these categories?
As it applies to an organization, Rule 4.2 does not technically prohibit ex-parte communications with employees that do not fit into one of these categories, so you could interview them. However, Rule 4.2 could be otherwise triggered if the employee has personal counsel, so the communication would be barred. If they do not have independent counsel, you risk obtaining confidential or privileged information that could be protected by a Non-Disclosure Agreement.
From a risk management perspective, it is best to avoid the “grey areas” of ex-parte communication in this context (and RSVP “no” to that opportunity!). Best practice is to use the discovery process to identify potential witnesses and take their depositions.
Looking for more risk management advice? Check out https://attorneyprotective.com/previous-webinars to watch prior AttPro webinars on a range of professional liability topics.
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