Bar Rules

Formal Advisory Opinion No. 87-6

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 87-6

State Bar of Georgia
Issued by the Supreme Court of Georgia
On July 12, 1989
Formal Advisory Opinion No. 87-6 (87-R2)

For references to Standard of Conduct 47 and DR 7-104(a)(1), please see Rule 4.2.

See Comment [4A] to Rule 4.2 for information not discussed in this opinion but relevant to the ethical issue presented.

Please note that this opinion cites to a State Bar of Georgia Proposed Rule of Professional Conduct, Rule 4.2, which was being considered in 1987 (see Footnote 1). This particular version of the proposed rule was never approved or issued.

For an explanation regarding the addition of headnotes to the opinion, click here.

Ethical Propriety of a Lawyer Interviewing the Officers and Employees of an Organization When That Organization is The Opposing Party in Litigation Without Consent of Organization

An attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or the corporation's counsel where the employee is either:

 

1. an officer or director or other employee with authority to bind the corporation; or
2. an employee whose acts or omissions may be imputed to the corporation in relation to  the subject matter of the case.

Correspondent asks when it is ethically proper for a lawyer to interview the officers and employees of an organization, when that organization is the opposing party in litigation, without the consent of the organization's counsel.

This question involves, among other things, an interpretation of Standard 47 of Rule 4-102 of the Rules and Regulations of the State Bar of Georgia [Georgia Code of Professional Responsibility DR 7-104 (A)(1)], and the State Bar of Georgia Proposed Rules of Professional Conduct Rule 4.2.

Standard 47 of Rule 4-102 of the Rules and Regulations of the State Bar of Georgia provides as follows:

During the course of his representation of a client, a lawyer shall not 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 written consent of the lawyer representing such other party or is authorized by law to do so. A violation of this standard may be punished by a public reprimand.1

The American Bar Association has implied that the foregoing prohibition applies only to certain employees of the organization. ABA Informal Opinion 1410 (1978) concluded that no communication with an officer or employee of a corporation with the power to commit the corporation in the particular situation may be made by opposing counsel unless he has the prior consent of the designated counsel of the corporation or unless he is authorized by law to do so.

The consensus view in other jurisdictions seems to be that an attorney may interview an employee of a corporate defendant without the consent of either the corporation or its counsel if the employee is not the person for whose acts or omissions the corporation is being sued and if the person is not an officer or director or other employee with authority to bind the corporation. On the other hand, an attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or the corporation's counsel where the employee is either:

   1. An officer or director or other employee with authority to bind the corporation;
   2. An employee whose acts or omissions may be imputed to the corporation in relation to subject matter of the case.2

If the employee does not fall into either of the foregoing categories, an attorney may contact and interview the employee without the prior consent of the corporation or its counsel.

1 Rule 4.2 of the Proposed Rules of Professional Conduct states as follows:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party or person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the written consent of the other lawyer as to communications with a party or has the consent of the other lawyer as to communications with persons represented by another lawyer, or is authorized by law to do so.
The comment to Rule 4.2 amplifies the Rule as follows: In the case of an organization, this rule prohibits communications by lawyers concerning the matter in representation with anyone having managerial responsibility on behalf of the organization and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statements may constitute an admission on the part of the organization, when the organization is known to be represented by another lawyer.  If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for the purposes of this Rule.
2 See ABA/BNA Lawyer Manual of Professional Conduct, Section 71:314-315



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