QUESTION: May Attorney communicate with a witness who is a former member and director of an association without the consent of the association’s counsel about facts related to Client’s defamation claim against the association? The witness was a member of the association at the time of the allegedly defamatory statements but had resigned from its board of directors prior to the date the statements were made. Counsel for the association asserted a client-lawyer relationship with all members of the association, including the witness by name, but the membership of the witness in the association has since been terminated.

ANSWER: The association is a represented organization. See Rules 4-1.13 and 4-4.2, Comment [7]. Rule 4-4.2 prohibits direct contact about the subject of the representation with a person Attorney knows to be represented by another lawyer in the matter, unless Attorney has consent of the other lawyer or is authorized to do so by law or court order. The witness’s status as a former constituent of the organization does not place the witness within a category of individuals with whom communication is prohibited without consent of the organization’s lawyer, per the guidance in Comment [7] to Rule 4-4.2. See Informal Opinion 2013-01. However, if Attorney knows the witness is represented in this matter by the association’s lawyer or another lawyer, Rule 4-4.2 prohibits Attorney from communicating with the witness without the consent of the other lawyer, authorization by law, or a court order. See Rule 4-1.0(e), Terminology (defining “knows” as “actual knowledge, which can be inferred from the circumstances”). Whether a client-lawyer relationship exists between counsel for the association and the witness is a question of fact and law outside the scope of the Rules of Professional Conduct. If Attorney communicates with the witness, the lawyer must not use methods of obtaining evidence that violate the legal rights of the organization, such as engaging in unwarranted intrusions into a privileged relationship. See Rule 4-4.2, Comment [7], and Rule 4-4.4 and Comment [1]. If Attorney knows the witness is not represented by counsel in the matter, any communication with the witness must comply with Rule 4-4.3, Dealing With Unrepresented Person. 

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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