Miami Personal Injury Lawyers, in addition to our law firm, are often faced with the decision of whether it is proper to contact former or currently employees of defendants.   

QUESTION: I represent a plaintiff in a case against a corporate defendant. Does Rule 4-4.2 prohibit me from contacting any current employees of the defendant corporation without consent of the corporation’s counsel?

ANSWER: Rule 4-4.2 prohibits an attorney from communicating concerning the subject of the representation with a person the attorney knows to be represented by counsel in the matter, unless the other attorney consents. In the case of a represented corporation, however, not all current employees of the corporation are within the scope of Rule 4-4.2. Unless corporate counsel’s consent is obtained, the rule does prohibit contacts with current employees who have a managerial responsibility on behalf of the corporation (e.g., directors, officers) and with non-managerial employees whose acts or omissions may be imputed to the corporation for liability purposes (e.g., a non-managerial employee who was directly involved in the incident in controversy). Comment, Rule 4-4.2; Opinion 78-4.

On the other hand, Rule 4-4.2 does not prohibit contacts with non- managerial employees who were not directly involved in the incident in controversy (e.g., non-managerial bystanders). Opinion 78-4. Thus, these employees can be contacted without consent of corporate counsel.

QUESTION: Does Rule 4-4.2 prohibit contacts with former employees of a represented corporation?

ANSWER: Opinion 88-14 concludes that it is ethically permissible for an attorney to contact former managers and other former employees of a represented corporate party without corporate counsel’s knowledge or consent, unless those former employees are in fact represented by the corporation’s counsel. In making such contacts, however, the attorney may not inquire into matters that are privileged. Additionally, the attorney should clearly identify himself or herself and the capacity in which he or she is acting. Rule 4-4.3.