LEGAL ETHICS OPIONION #1670 CONTACT WITH FORMER EMPLOYEE OF
ADVERSE PARTY
You have presented a hypothetical situation in which an attorney
represents Defendant in a dispute concerning the right to goods.
Defendant bought the disputed goods from Seller, who contends that
Plaintiff released its lien prior to the sale to Defendant.
Plaintiff says the lien was not released. Officer, an employee of
Plaintiff, signed documents which Seller says were intended to
release the lien. Seller says Officer's subsequent actions were
consistent with a release of the lien, and Seller believes
Officer's testimony would be favorable to Defendant. Officer no
longer works for Plaintiff and is not represented by counsel.
Under the facts you have presented, you have asked the committee to
opine as to the propriety of the Defendant's attorney communicating
ex parte with Officer to determine Officer's recollections
concerning matters at issue in a law suit pending in a Virginia
Circuit Court.
The appropriate and controlling disciplinary rule relative to your
inquiry is DR 7-103(A)(1) which states that during the course of
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 counsel 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 it is permissible to
contact, ex parte, employees of an adverse corporation as long as
the attorney first discloses their role as an adversary to the
corporation in litigation and second the employee does not occupy
a position within the corporation such that he or she could commit
the corporation to specific courses of action that would lead one
to believe the employee is the corporation's "alter ego", i.e.,
that said employees are members of the corporation's "control
group" as defined in Upjohn Co. v. United States, 449 U.S. 383
(1981). Under the alter ego test, any employee who because of
their status or position might bind the corporation by their acts
or admissions must be contacted only through formal discovery
channels and not by ex parte methods. (See Legal Ethics Opinion
Nos. 347, 530 and 801).
In prior opinions, this committee has adopted the "control group"
test as a standard for defining a group of employees to be treated
as a "party" for purposes of DR 7-103(A)(1) and whom opposing
counsel may not interview without the consent of counsel for the
corporate entity. Under the control group test it is not improper
for an attorney to communicate directly with the employee of an
adverse party if that employee is not a member of the control group
and is not able to commit the organization to specific courses of
action that would lead one to believe the employee is the
corporation's alter ego. (See Legal Ethics Opinion No. 1504).
Clearly, an officer of a corporation would be a likely member of
the corporation's control group or alter ego under this definition.
In the facts you present, the committee believes that the
termination from employment by Officer in this hypothetical is a
pivotal point which distinguishes the analysis of this
hypothetical. A corporation acts through its employees. However,
once an employee who is also a member of the control group
separates from the corporate employer by voluntary or involuntary
termination, the restrictions upon direct contact cease to exist
because the former employee no longer speaks for the corporation or
binds it by his or her acts or admissions. In fact, this committee
has previously held that 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. (See
Legal Ethics Opinion Nos. 533, 905 and 1589). Counsel for the
corporation represents the corporate entity and not individual
corporate employees. (See Ethical Consideration 5-18). In the
instance where it is necessary to contact unrepresented persons, a
lawyer should not undertake to give advice to the person, except to
advise them to obtain a lawyer. (See Ethical Consideration 7-15).
The committee is mindful that some circuit courts and federal
courts in Virginia have interpreted DR 7-103(A)(1) differently.
Some courts have applied a Model Rules approach and prohibited ex
parte contacts not only where the control group or alter ego theory
applies, but also where the activities or statements of an employee
are part of the focus of litigation or would make the employer
vicariously liable as a result of the employee's statements or
activity. Queensberry v. Norfolk & Western Ry., 157 F.R.D. 21
(E.D.Va. 1993); Nila Sue DuPont v. Winchester Medical Center, Inc. -
Winchester Circuit Court Law No. 92-171. The committee also
recognizes that a different opinion might result if the facts of
this hypothetical were analyzed under Rule 4.2 of the Model Rules
which adopts a broader prohibition of ex parte contacts than DR 7-
103(A)(1). Nevertheless, the committee must apply the rules of
conduct which Virginia has adopted to this hypothetical and leave
specific legal rulings involving other rules of ethical conduct to
the presiding trial judges of Virginia based upon the facts
presented before them.
[DR 7-103(A); LEOs 347, 530, 533, 801, 904, 1504, 1589; ECs 5-18,
7-15; ABA Model Rule 4.2; ABA Formal Op. 91-359 (1991); Upjohn Co.
v. United States, 449 U.S. 383 (1981); Queensberry v. Norfolk &
Western Ry., 157 F.R.D. 21 (E.D.Va. 1993); Nila Sue DuPont v.
Winchester Medical Center, Inc. - Winchester Circuit Court Law No.
92-171]
Committee Opinion
April 1, 1996
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