Attorney Jacobs represents a client, Mr. Henderson, who is suing a corporation for breach of contract. Jacobs is aware that the corporation is represented by Attorney Smith. Jacobs wants to obtain information about the corporation's internal decision-making process related to the contract. Without notifying Attorney Smith, Jacobs contacts a former high-level manager of the corporation, who was involved in the contract negotiations but is no longer employed by the corporation. The former manager is not represented by counsel. Is Jacobs's conduct ethically permissible?
- AYes, provided Jacobs informs the former manager that Jacobs represents Mr. Henderson and the corporation is an adverse party.
- BYes, because the former manager is no longer employed by the corporation and is not a represented party.
- CNo, because the former manager's statements could be imputed to the corporation, making the corporation an indirectly represented party.
- DNo, because Jacobs should have obtained a court order before contacting a former employee of an adverse party.
Show answer & explanationAnswer & explanation
Correct answer: B. Yes, because the former manager is no longer employed by the corporation and is not a represented party.
Model Rule 4.2 generally prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. However, this rule does not extend to former employees of an organization, as they are not considered represented parties for the purpose of the rule, unless they are personally represented by counsel regarding the matter.
Why the other options are wrong
- A. While informing the former manager about Jacobs's role and the adverse nature of the parties is good practice under Rule 4.3 (dealing with unrepresented persons), it is not the sole determinant of permissibility under Rule 4.2 regarding contact with represented parties.
- C. The imputation rule under Model Rule 4.2 typically applies to current employees whose statements could bind the organization, not former employees.
- D. There is no general requirement to obtain a court order to contact a former employee of an adverse party; this would be an unnecessary procedural hurdle not supported by the rules.
Contacting Former Employees of Represented Organizations
A lawyer may communicate with a former employee of an organization represented by counsel without the consent of the organization's lawyer, unless the former employee is personally represented by counsel in the matter.
- Rule 4.2 generally prohibits contact with represented persons.
- This prohibition does not extend to former employees.
- Exception: If the former employee is personally represented, Rule 4.2 applies.
Memory trick: Former staff are free to chat, no lawyer's gate to bat.