Question: Attorney represents Plaintiffs in employment discrimination actions against a represented organization. Does Rule 4-4.2 prohibit Attorney from contacting unrepresented former managerial employees of Defendant without the consent of Defendant’s counsel?
Answer: Provided Attorney does not know that the former employees are represented by counsel, Rule 4-4.2 does not prohibit Attorney from communicating with Defendant’s former managerial employees about the subject of the representation without consent of Defendant’s counsel, as explained in Comment [7]. In accordance with Rule 4-4.3, Attorney must clearly identify Attorney’s role in the matter and ask whether the former managerial employees are represented by counsel. If any of the former managerial employees are represented by counsel, then Attorney must have that counsel’s consent or be authorized by law or court order to communicate with the former employees. This opinion does not address any limitations at law on Attorney’s contact with former employees, but Comment [7] to Rule 4-4.2 prohibits the use of methods of obtaining evidence that violate the legal rights of the organization as set forth in Rule 4-4.4(b).

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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