Summer 2021

Can a Lawyer Ethically Partake In Ex Parte Communications With an Adversary’s Current/ Former Employees?

The rules regarding whether a lawyer can communicate with a person represented by counsel are straightforward:

A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.[1]

But what if a lawyer seeks to communicate with his adversary’s current or former employee? Is the communication off-limits?

In instances where a lawyer seeks to communicate with an adversary’s current employee, their ability to make such contact will depend on whether the employee is a part of the “control group” or in other words, is one “who because of their status or position, has the authority to bind the corporation with respect to the matter.[2] Thus, a lawyer is not prohibited from contacting current employees who may serve as fact witnesses so long as they are not charged with the authority to act on behalf of the corporation in the particular area, which is the subject matter of litigation.[3] This means that it is very possible for a lawyer to contact, for example, your organization’s client’s hourly, low-level sales associate to gain information about a specific individual, policy, or circumstance that is often the subject of your run-of-the-mill slip and fall case.

The rules are even more relaxed when it concerns former employees of an organization since:

[c]onsent of the organization’s lawyer is not required for communication with a former constituent. […] In communicating with a […] former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.[4]

According to the non-binding Legal Ethics Opinion #1670, it is “ethically permissible for an attorney to communicate directly with the former officers, directors, and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel.”

This opinion was resounded in the recently published and Supreme Court of Virginia approved Legal Ethics Compendium Opinion #1890. And, though there is little case law concerning this specific topic, the issue was fully discussed by the trial court in Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80 (2005).

In that medical malpractice case, the defendant corporation, Virginia Health Services, Inc., filed a motion for a protective order to bar the plaintiff’s attorney from having ex parte communications with its former employees (both former control group and non-control group employees) who were not parties to the action. The court denied the defendant’s motion for a protective order prohibiting ex parte contact with former employees. In its determination, the court considered the United States District Court of the Western District of Virginia’s decision in Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) (denying ex parte communications with former employees where the former employees’ testimony may impute liability to the former employer), but ultimately relied on the explicit language of Rule 4.2, Comment 4 (now Rule 4.2 Comment 7, and LEO 1670.)

In its decision, the court in Pruett v. Virginia Health Servs., was careful to require Plaintiff’s attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel; and (3) advise the former employee that he or she is not his client. Plaintiff’s counsel was also prohibited from providing any legal advice to the former employee, apart from advising the former employee that he or she may obtain a lawyer if they wished to do so.

Therefore, it would seem that when in state court, former employees are “fair game” for ex parte contacts regardless of their former position within the company.[5] Of course, whether making her ex parte communications with a current or former employee, a lawyer must still comply with Va. Rule 4.3 (Dealing With Unrepresented Persons) and Va. Rule 4.4 (Respect For Rights Of Third Persons).                                                                                                                                                                                                                                                              [1] Va. Rule of Professional Conduct 4.2.

[2] Va. Rule of Professional Conduct 4.2, Comment [7].

[3] Va.  LEO 905 (1987).

[4] Va. Rule 4.2, Comment [4].

 Written by associate Alexandra Monaco.