940063 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 940063

Rules: 4.2;8.4;8.5

Transactions with Persons other than Clients

Communication With Person Represented by Counsel

[NOTE: Rule 4-4.2 and its comments regarding former employees have changed substantially since this informal advisory opinion was issued.]

QUESTION: Attorney is practicing as a visiting attorney in a case in a jurisdiction in which Attorney is not licensed. Attorney would like to make ex parte contact with former employees of the opposing corporate party. The former employees were not upper level management but may have been lower or middle level management. The former employees were not involved in the occurrence giving rise to the suit. The rules of the jurisdiction in which the suit will be heard may allow such contact. If Attorney may not contact the former employees directly, may Attorney´s client discuss the matter with the former employees if Attorney does not “coach” the client. ANSWER: If the former employees were management at any level, Attorney may not engage in ex parte contact with those employees. If the former employees were not management, the remainder of the analysis set out in the comment to Rule 4-4.2 must be performed. If the client engages in ex parte communications with the former employees, Attorney will not be violating Rule 4-8.4 by having another person do what the attorney may not do if Attorney has not, in any way, expressly or impliedly indicated to the client that he should engage in such communication. Because Attorney is licensed in Missouri, the Missouri rules will apply under Rule 4-8.5 although the case is in another jurisdiction.

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.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.