A plaintiff’s attorney asked the Legal Ethics counsel, “Does [Missouri Ethics] Rule 4-4.2 prohibit Attorney from contacting unrepresented former managerial employees of Defendant without the consent of Defendant’s counsel?” In short, the answer is No, unless the ex-manager is represented by counsel. The attorney must ask about whether he is represented. If so, any contacts must be made through counsel. If not, the contact is permissible.
Rule 4-4.2 contains the time-honored prohibition against attorney contact with represented parties.
When a client is concerned about Plaintiff’s counsel contacting a current or former manager, there are some important considerations to bear in mind:
- Current managers: Always inform current managers who have worked with the Plaintiff that if they are contacted by Plaintiff’s counsel, they should answer no questions and direct the caller to the company’s attorneys.
- If a former manager is only a witness: The company may contact the former manager, and let her know that a dispute is brewing with an employee she used to work with. And that while it is her choice whether or not to do so, she is under no obligation whatsoever to speak with either the employee or his attorney. Clients should be advised accordingly.
- If a former manager is named as a co-defendant: In Missouri, especially in employment cases, it is all too common for plaintiffs to name not only the company, but the plaintiff’s supervisor(s) and managers as well, as defendants. Case law under the Missouri Human Rights Act often permits this. In cases involving current managers, Comment 7 to Ethics Rule 4-4.2 says they cannot be contacted by opposing counsel; and in many circumstances, the company will be providing a defense for the manager, which likewise means he is a “represented” person who cannot be directly contacted. On the other hand, for managers no longer employed by the company, whether plaintiff’s counsel can contact the individual may turn on whether the company is providing a defense for the manager. If the company provides a defense, contact can only occur through company counsel, and the ex-manager should deflect any calls from plaintiff’s counsel, to the company attorney. Likewise, if the former manager has his own counsel, contact can only occur through that attorney.