Ex Parte Communication with Employees of a Corporate Defendant

As the Plaintiff's attorney, are you allowed to contact current employees of a corporate Defendant?

The answer is governed by Rule 4.2 of the Georgia Rules of Professional Conduct.

(a) lawyer who is representing a client in a matter 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 court order.

1. (b) Attorneys for the State and Federal Government shall be subject to this Rule in the same manner as other attorneys in this State.

The maximum penalty for a violation of this Rule is disbarment.

See Rule 4.2, Georgia Rules of Professional Conduct. Some states have interpreted this rule to prohibit all communication with current employees. The more permissive interpretation only prohibits communication with officers of the corporation with the authority to bind the corporation. In 1989, the Georgia Bar issued an advisory opinion adopting that standard.

The consensus view in other jurisdictions seems to be that an attorney may interview an employee of a corporate defendant without the consent of either the corporation or its counsel if the employee is not the person for whose acts or omissions the corporation is being sued and if the person is not an officer or director or other employee with authority to bind the corporation. On the other hand, an attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or the corporation's counsel where the employee is either:

   1. An officer or director or other employee with authority to bind the corporation;
   2. An employee whose acts or omissions may be imputed to the corporation in relation to subject matter of the case.2

If the employee does not fall into either of the foregoing categories, an attorney may contact and interview the employee without the prior consent of the corporation or its counsel.

See Formal Advisory Opinion No. 87-6 (87-R2).