Utah State Bar
Ethics Advisory Opinion Committee
Proposed EAOC 15-04
Issued September 30, 2015
- When may a lawyer directly contact a former employee who had been within the control group of an adverse party such as a corporation?
- A lawyer may contact a former employee who had been within the control group of an adverse party, but may not communicate about any matters that are covered by the attorney-client privilege. The lawyer may only communicate about the former employee’s observations that were not communicated to corporate counsel, and may not ask about any communications with the corporate counsel or discuss any work product that resulted from those communications.
- Lawyer represents client in employment discrimination case. The proposed witness to be interviewed is the former Human Relations Director (HRD) of the adverse corporation. The former HRD was the client contact for the adverse corporation. The former HRD tells client that he has all of the information needed to support client’s case and knows of several more employment discrimination cases against the adverse corporation. Witness specifically asks the lawyer to contact him prior to his deposition. Lawyer does not have permission of opposing counsel to speak with the proposed witness and in fact was told to have no extra-judicial contact with the former HRD.
- RPC 4.2(a) provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”
- As EAOC Opinion 04-04 explains, Rule 4.2 “does not bar a lawyer’s unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances. . . .”(emphasis added). Comment 19 similarly provides: “In general, however, a lawyer may, consistent with this Rule, interview a former employee of an organization without the consent of the organization’s lawyer.” However, because the HRD was a member of the control group, any interview of the HRD must be carefully circumscribed to avoid inquiring into privileged communications or work product.
- Pursuant to Rule 504(d) of the Utah Rules of Evidence, the former HRD was a representative of the client. He was a person who obtained professional legal services on behalf of the client. He was expected to act on the advice of counsel and most importantly, he was the individual selected and specifically authorized to communicate with opposing counsel concerning the legal matters involved in the ongoing lawsuit.
- The advice and directions of opposing counsel to former HRD are communications under Evidence Rule 504(d)(5). They are also “confidential communications” pursuant to Evidence Rule 504(d)(6).
- It is irrelevant that HRD was a natural person seeking legal advice and representation on behalf of the now defendant corporation. The Utah Supreme Court defined the scope of corporate representation in Moler v. CW Management Corp., 190 P.3d 1250 (Utah 2008):
We begin and end our analysis with a plain-language review of Utah Rule of Evidence 504:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, in any combination.