Attorney Phillips represents a client who is suing a large corporation. Phillips believes a former low-level employee of the corporation, who was not privy to confidential information, might have relevant non-privileged information. Phillips wishes to interview this former employee. Which of the following is true regarding Phillips's ability to communicate with the former employee?
- APhillips may communicate with the former employee without the consent of the corporation's counsel.
- BPhillips may communicate with the former employee only if the former employee initiates contact.
- CPhillips must obtain the consent of the corporation's counsel before communicating with the former employee.
- DPhillips must seek a court order to communicate with the former employee, even if they are unrepresented.
Show answer & explanationAnswer & explanation
Correct answer: A. Phillips may communicate with the former employee without the consent of the corporation's counsel.
Model Rule 4.2 generally prohibits communication with represented persons. However, this prohibition typically does not extend to former employees of an organization unless they were in a position to bind the organization or had access to privileged information relevant to the matter.
Why the other options are wrong
- B. Initiation of contact by the former employee is not a prerequisite for communication under these circumstances.
- C. Consent is generally not required for former employees who are not high-level or privy to privileged information.
- D. A court order is not necessary for communicating with an unrepresented former employee who does not fall under the exceptions of Rule 4.2.
Contacting Former Employees
A lawyer may generally communicate with a former employee of an organization represented by counsel without the organization's counsel's consent, provided the former employee is not represented and does not possess privileged information or authority to bind the organization.
- Rule 4.2 generally applies to current employees.
- Former employees are usually treated as unrepresented third parties.
- Caution required if former employee had binding authority or privileged information.
Memory trick: Don't chat with the other side's 'current' team without their coach's 'OK'.