20010010 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20010010

Rules: 4–4.2

Transactions with Persons other than Clients

Communication With Person Represented by Counsel

Subject: Communication with Represented Persons

Summary: communicating with nonmanagerial employees of an organization

QUESTION: Client brought a suit against a former employer. The Petition alleges that the former employer defamed Client in stating that Client committed “gross misconduct” in Client’s employment. Defendant asserts that the gross misconduct occurred in a couple of conversations. During these conversations, there were a couple of employees present who may have observed the conversations. These employees are not management personnel. These employees are still employed by Defendant. These employees were not part of the conversation and they did not complain to management about Client’s conduct. They were also not involved in the investigation that led to the termination of Client. Attorney would like to contact these employees and question them about what they witnessed regarding the conversations in question. Should the hourly employees be treated as the “party” for purposes of Rule 4 dash–4.2?

ANSWER: Based upon the information Attorney has provided, it is permissible for Attorney to make direct contact with these employees, without violating Rule 4 dash–4.2. Different or additional information could change this opinion.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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