MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-29
Ex parte communication with former employee of opposing party
In your letter you state that you represent a plaintiff who is a former employee of a corporation in litigation concerning the terms of her employment contract with the defendant. You desire to contact ex parte a former manager of one of the corporations offices whose instructions concerning the plaintiff's job responsibilities are at issue in the lawsuit. Those instructions are alleged with specificity in the complaint. You have requested that we provide you with an opinion as to whether you may pursue this ex parte contact under Rule 4.2 of the Maryland Lawyers' Rules of Professional Conduct.
Rule 4.2 is entitled "Communication with Person Represented by Counsel." It states as follows:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has consent of the other lawyer or is authorized by law to do so.',
Rule 4.2 is substantially identical to the former DR7-104(A)(l). In addressing a similar issue in Docket 86-13, the Committee determined that it was ethically permissible for an attorney to communicate directly with former employees of an adverse corporate party.. In that regard, the Committee's opinion stated that the primary concept reflected in DR7-l04(A)(1) reflected in Rule 4.2, was a party's right to have effective representation of counsel. The Committee opined that with respect to former employees, since their employment with the corporation has been severed they can in no way to be held to bind the corporation or communicate information that can be used to bind their former employer. A copy of Docket 86-13 is enclosed for you. In view of the Committee's earlier opinion in Docket 86-13, the Committee determines that Rule 4.2 does not prohibit the proposed ex parte contact.
When contact is made with the proposed witness, a determination should be made as to whether the proposed witness is represented by counsel. If such is the case, then your contact should be with that counsel. If the individual is not represented, then the provisions of Rule 4.3 dealing with unrepresented persons would apply. In that regard, a lawyer may not state or imply that a lawyer is disinterested in dealing on behalf of a• client with a person who is not represented by counsel.
This opinion, 90-29 makes references to opinion 86-13.
Other References: Rule 4.2 of the Maryland Lawyers Rule of Professional Conduct