We are often asked by clients if there is anything they can do to keep Plaintiff’s counsel from speaking with managers who are no longer with the company. A recently published Missouri Informal Advisory Opinion on Legal Ethics (Opinion 2013-01) addresses this subject.
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.
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 or is authorized to do so by law or a court order.
The Ethics Opinion cites Comment 7 to Rule 4-4.2. That Comment was first adopted in Missouri in 2007, and has not heretofore been the subject of a Missouri ethics opinion. Comment 7 explains the ground rules for “represented organizations” (e.g. companies who have lawyers):
In the case of a represented organization, Rule 4-4.2 prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule 4-4.2. Compare Rule 4-3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4-4.4.
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.