Legal Ethics Opinion #1589

Communicating With Adverse Parties: Attorney Contacting Former
Employee of Adverse Corporate Party When Corporate Attorney
Claims to Represent Former Employee Individually

You have presented a hypothetical situation in which A sues B, a
corporation, for medical negligence and fraud.  You indicate that
A's attorney contacts and attempts to interview B's former
employee, X, who has information relevant to A's claims against
B.  However, X states that B's attorney has already contacted her
and advised her not to speak with A's attorney.  Also, B's
attorney has told X that he represents X individually as well as

You have asked the committee to opine whether, under the facts of
the inquiry, it is ethical for B's attorney to contact former
employees of B, advise them that he represents them individually,
and instruct them not to speak with A's attorney.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 7-103(A)(1), which provides that 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 consent of the
lawyer representing such other party or is authorized by law to
do so.  

The committee has previously opined that an attorney may
communicate directly with former employees of an adverse party,
unless the attorney is aware that any of the former employees is
represented by counsel.  See LEOs #533, #905. 

The question, then, is whether B's former employees are
represented by counsel?  It is well-established that a
corporation's attorney represents, and owes his allegiance to,
the corporation and not individual corporate employees.  See EC

As former employees, X and others have a right to choose their
own counsel. The facts do not indicate that the former employees
have freely chosen counsel.  Instead, the facts indicate that B's
attorney contacted X, advised her not to speak with A's attorney,
and advised her that he represents her as well as B.  Since X did
not choose B's attorney as counsel, B's attorney cannot claim to
represent her absent her agreement.  B's attorney cannot claim to
represent any of the former employees if they did not engage him
to do so.

Since the facts do not indicate that X agreed to representation
by B's attorney, the committee is of the view that B's attorney
cannot advise X that he represents her individually nor may he
instruct X not to speak with A's attorney.  See LEOs #1235,
#1281, #1426.  As to X, or any other unrepresented former
employee, B's attorney may only advise that person to secure
counsel, since that person's interests may be in conflict with
the interests of his client, B.  See DR 7-103(A)(2).  
Committee Opinion
April 11, 1994