Anti-Contact Rule and Corporations
May 17, 2011
Suppose you represent an injured person and the opposing party is a corporation represented by counsel. In conducting witness interviews of company employees, who can you talk to without corporate counsel’s consent? This is a sometimes tricky issue that makes more sense when you think about the persons Rule 4.2 is trying to protect. Rule 4.2, the anti-contact rule, prohibits an attorney who represents a client in a matter from talking to a represented person about the subject of the representation. The purpose of this rule is to protect a client from overreaching by opposing counsel and specifically, to protect attorney-client communications. So the question becomes, who, within a corporation, should be protected by this rule? Answer: persons who have or would likely have actually consulted with corporate counsel on the matter. Those persons who are off limits include: (1) personnel who supervise, direct or consult with the corporation’s lawyer on the matter (think high level managerial employees), (2) persons who have authority to legally obligate (think “speak for”) the corporation with respect to the matter, and (3) persons whose acts or omissions are at issue in the litigation and may be imputed to the corporation for purposes of civil or criminal liability. Rank and file employees are generally fair game as are low and middle level management, such as a plant supervisor. Officers of the corporation? — consult with the corporation’s lawyer first. Unrepresented former employees are fair game, unless they participated substantially in the legal representation prior to their departure. Finally, a rank and file employee is not off limits simply because corporate counsel has interviewed that person as a fact witness. It is not the mere fact of the communication with corporate counsel that is the key; it is whether the employee’s communication was more like a legal consultation with corporate counsel.