Ex Parte Communications with Former Employees of an Opposing Party

This article was published as Chapter 6.5 of the Arizona Construction Law Practice Manual, 3rd Ed. 2016

Employee turnover is not uncommon within the construction industry. Accordingly, a lawyer engaged in construction litigation may often find that a former employee of an opposing party possesses information and insights that are relevant to the issues in dispute. In that situation, an informal interview with that former employee may prove to be a valuable, and relatively inexpensive, endeavor. However, initiating ex parte contact with a former employee could raise serious ethical concerns if the opposing party is represented by counsel.

§ 6.5.2 Ethical Rule 4.2

Arizona has adopted Rule 4.2 of the American Bar Association’s Model Rules of Professional Conduct, which prohibits ex parte communications with represented parties in a matter regarding the subject of the immediate litigation.[1] Specifically, Ethical Rule 4.2 provides:

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 the consent of the other lawyer or is authorized by law to do so.[2]

For purposes of Ethical Rule 4.2, a person being provided limited-scope representation pursuant to Ethical Rule 1.2(c) is considered to be unrepresented unless the opposing party or lawyer is aware of both the existence of the limited-scope representation and the identity of the lawyer providing the limited-scope representation.[3]

In the case of a represented organization, the Comment to Ethical Rule 4.2 explains that a lawyer is prohibited from engaging in ex parte communications with three sets of individuals: (a) employees who have a managerial responsibility on behalf of the organization; (b) employees whose acts or omissions in connection with the matter may be imputed to the organization for purposes of civil or criminal liability; and (c) employees whose statement may constitute an admission on the part of the organization.[4] The Comment, however, does not clarify the applicability of Ethical Rule 4.2 to a represented organization’s former employees.

§ 6.5.3 Arizona’s View

As regards ex parte communications with former employees of a represented organization, Arizona has adopted a modified version of the majority view. Under the majority view, ex parte communications with former employees are not prohibited.[5] In Arizona, ex parte communications with former employees of a represented organization are generally permitted under Ethical Rule 4.2, with two exceptions: (a) when the former employee’s acts or omissions gave rise to the subject litigation; and (b) when the former employee has an ongoing relationship with the former employer in connection with the litigation.[6] This rule applies even where the former employee is currently employed by the party whose lawyer wishes to interview him or her.[7]

Whether a former employee’s acts or omissions gave rise to the immediate litigation may be readily ascertained through disclosure and discovery. But whether the former employee has an “ongoing relationship” sufficient to justify a prohibition against ex parte contact is a more complicated inquiry, and the courts have declined to define a bright-line test with respect to this issue.[8] On one hand, mere knowledge of damaging information is insufficient to constitute such an “ongoing relationship.”[9] On the other hand, the former employee having knowledge of confidential information or participating in the former employer’s defense are factors that weigh in favor of finding an “ongoing relationship,” though the exact level to which such knowledge and participation must rise to tip the balance is unclear.[10]

§ 6.5.4 Conclusion

As it will not often be immediately apparent whether ex parte contact with a represented organization’s former employee is permitted under Ethical Rule 4.2, it is best to always proceed with caution. The most practical and safe approach, as noted by several commentators, is to secure permission to communicate with the former employee in writing from either the former employer’s lawyer or the court before contacting the former employee.[11] Where the former employee is separately represented in the matter, his or her own counsel’s consent will be sufficient to satisfy Ethical Rule 4.2.[12]

While taking steps to comply with Ethical Rule 4.2, a prudent lawyer must also bear in mind other ethical responsibilities that come into play when performing an informal ex parte interview of a former employee. For instance, Ethical Rule 4.4 mandates that the interviewing lawyer avoid all inquiries into matters that may involve privileged communications between the former employee and his former employer’s attorney.[13] Additionally, pursuant to Ethical Rule 4.3, the interviewing attorney must ensure that his or her role in the matter is made clear to the former employee, which includes informing the former employee of the nature of the case, the identity of the lawyer’s client, and that the employee’s former employer is an adverse party.[14].