83-F-46 - Interviewing non-management employees

FORMAL ETHICS OPINION 83-F-46


Inquiry is made by the plaintiff's attorney concerning the propriety of
interviewing non-management or non-administrative level employees of a
corporate defendant, to determine the facts of a disputed matter, without
the knowledge or consent of the corporation or its attorney.


Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility provides as
follows:
DR 7-104 Communicating With One of Adverse
Interest.
(A) During the course of his representation of a client, a
lawyer shall not:
(1) Communicate or cause another to
communicate on the subject of the
representation with a party he knows to be
represented by a lawyer in that matter unless
he has the prior consent of the lawyer
representing such other party or is
authorized by law to do so.
Generally, a lawyer may interview witnesses or prospective witnesses for opposing sides
without the prior consent of opposing counsel.
Non-management and non-administrative level employees of an adverse party are to be
considered as witnesses. The provisions of DR 7-104(A)(1) do not apply to witnesses.
However, the management or administrative level employees of an adverse party are to be
considered and treated as adverse parties. The provisions of DR 7-104(A)(1) fully apply
to management and administrative level employees. See ABA Informal Opinion 1377.
There is no impropriety in the plaintiff's attorney interviewing non-management or nonadministrative
level employees of a corporate defendant without the knowledge or
consent of the corporation or its attorney, provided the attorney identifies himself and
informs the employee of the controversy and the reason for the inquiry prior to the
interview.
83-F-46 Page 2
This 14th day of April , 1983.
ETHICS COMMITTEE:
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis