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.
This 14th day of April , 1983.
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis