UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-19
A plaintiff's attorney wishes to communicate with a former employee of defendant corporation. The plaintiff's attorney has been informed by the corporation's counsel that the former employee has retained personal counsel. The corporation's counsel, however, is not aware of the name of the former employee's counsel. The plaintiff's attorney, therefore, knows that the former employee is represented by counsel in the matter.
QUESTIONS:
1. May plaintiff's attorney under these facts communicate directly with the former employee for the limited purpose of gaining the name of the former employee's personal counsel? And if so, what form may such communication take?
2. Need the plaintiff's attorney inform the corporation's counsel of the communication with the former employee given the corporation's counsel's knowledge of the former employee's retention of personal counsel in the matter?
3. May plaintiff's attorney freely communicate with the former employee with the consent of the employee's personal counsel when the former employee's statements may constitute an admission on the part of the corporation or otherwise impute liability to the corporation?
SUMMARY:
Plaintiff's attorney may communicate with former employee for the sole purpose of obtaining the name of the former employee's personal counsel. A written communication would be the more prudent method of communication. Corporate counsel need not be informed of any communication with former employee authorized by former employee's lawyer. Former employee's prior status with the corporation is not germane to the analysis as any statements made by the former employee would not be binding admissions nor the basis of imputed liability to the corporation.
DISCUSSION:
Rule of Professional Conduct 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the lawyer or is authorized by law to do so.
Under the current facts, plaintiff's attorney wishes to communicate with former employee (presumably about the subject of the representation) and knows former employee is represented by another lawyer. Plaintiff's attorney is in the perplexing position of not knowing the identity of former employee's lawyer from whom consent to communicate may be obtained.
Plaintiff's attorney may communicate with the former employee for the sole purpose of obtaining the name of the former employee's personal counsel. A written communication with the employee to obtain this information would be the more prudent method. Such communication will not be "...about the subject of the representation."
Once the identity of former employee's lawyer is learned, plaintiff's attorney is under no obligation to seek permission from corporate counsel to contact former employee's lawyer. Further, corporate counsel need not be informed of any communication with former employee authorized by former employee's lawyer.
Upon authorization and consent from former employee's lawyer, plaintiff's attorney may freely communicate with former employee. See ABA Formal Opinion 95-396(1995). The Comment to Rule 4.2 explicitly states: "If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent of that counsel to a communication will be sufficient for purposes of this Rule." Former employee's prior status with the corporation is not germane to the analysis as any statements made by former employee would not be binding admissions nor the basis of imputed liability to the corporation. See South Carolina and Federal Rule of Evidence 801(d)(2)(B). See generally, ABA Formal Opinions 91-359 (1991) and 95-396 (1995).