Informal Opinion Number: 960192

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

QUESTION: In the course of representing the plaintiff in a personal injury case, may Attorney communicate with the person who Attorney believes is liable, if that person is not represented by counsel? Is the answer the same if the person is an employee of a company that is not represented by counsel? ANSWER: If Attorney does not know, or have reason to know, that the person whom Attorney intends to contact is represented by counsel, Attorney may make contact with that person and take a statement without violating Rule 4-4.2. If Attorney´s contact with that person is based on that person´s employment or former employment by an entity, that person may be considered to be represented if the entity is represented. The second paragraph of the comment to Rule 4-4.2 sets out the test. If Attorney does make contact with an unrepresented person, Attorney must follow the requirements of Rule 4-4.3.

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: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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