Formal Advisory Opinion No. 94-3
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 94-3
State Bar of Georgia
Issued by the Supreme Court of Georgia
On September 9, 1994
Formal Advisory Opinion No. 94-3
For references to Standard of Conduct 47, please see Rule 4.2.
This opinion also discusses issues addressed by Rule 4.3.
For an explanation regarding the addition of headnotes to the opinion, click here.
May a lawyer properly contact and interview former employees of an organization represented by counsel to obtain information relevant to litigation against the organization?
A lawyer may properly contact and interview former employees of an organization that is represented by counsel to obtain non-privileged information relevant to litigation against the organization provided that: (1) the lawyer makes full disclosure as to the identity of his/her client; and (2) the former employee consents.
The question presented involves attempts to obtain information from former employees of an organization represented by counsel and is an aspect of the perennial problem of information control by lawyers engaged in litigation. Lawyers do not want their adversary colleagues to contact and interview employees of their client organization for the purpose of obtaining information that may be used against the organization. But a rule prohibiting such contact without consent of the organization's lawyer gives that lawyer a right of information control, a right that is easily subject to abuse. Therefore, strong policy reasons must support such a rule.
The problem is an outgrowth of the rule that a lawyer shall not communicate about the subject of the representation with a person represented by a lawyer without the prior consent of the lawyer. Standard 47, Ga. Bar Rule 4-102. This rule has been widely adopted, see, e.g., Rule 4.2, ABA MRPC, and is deemed to represent sound policy. Lawyers should not be able to contact and attempt to manipulate the clients of fellow members of the bar, especially when the lawyer's purpose in doing so is to serve his or her own self-interest in disregard of the welfare of the other lawyer's client.
This policy explains why Standard 47 applies to the employees of organization clients when those employees have the power to bind the organization by what they say or do. Formal Adv. Op. 87-6 (July 1989). The words of a former employee can provide only information, and those words cannot have a binding effect on the former employer. Since neither words nor actions of a former employee can bind the organization, the policy relied on in Formal Adv. Op. 87-6 is not applicable to former employees. When the purpose of the rule ends, the rule itself ends. Therefore, a lawyer may contact and interview the former employees of an organization to obtain non-privileged information to use against that organization in a dispute.
That, however, does not conclude the matter. Just as a rule prohibiting such contact would be an example of information control unsupported by any valid policy considerations, so the lawyer's contact and interview without informing the employee of the purpose would be an example of information control in the same category. A former employee may not wish to give information against the former employer, and since he or she is entitled not to do so, it would be unethical to use deceit and false pretenses to deny the former employee his or her right. Consequently, the former employee is entitled to know the identity of the lawyer's client, the reason for the contact, the purpose of the interview and any other information necessary under the circumstances to make the interview not misleading. A refusal of the former employee to grant the interview means only that the lawyer must resort to the normal discovery processes and witness procedures.
It follows, then, that while a lawyer may contact a former employee of an organization for the purposes of an interview, before proceeding with the interview, that lawyer must make full disclosure and obtain the consent of the former employee.
While this opinion has not dealt with the situation in which the organization is not represented by a lawyer, it is well to note two things. First, there is no rule of ethics prohibiting the contact in such a situation; second, even when there is no lawyer representing the organization, the former employee still has a right to know the reason for the contact and the purpose of the interview. Therefore, it would be unethical for a lawyer to attempt to obtain information without full disclosure. In this context as in others, a lawyer's attempt to obtain information under false pretenses or by the use of deceit is unethical.
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