Formal Opinion 69: Propriety of Communicating With Employee or Former Employee of an Adverse Party Organizational-revised Opinion Adopted June 19, 2010
| Jurisdiction | Colorado,United States |
| Citation | Vol. 39 No. 10 Pg. 21 |
| Pages | 21 |
| Publication year | 2010 |
2010, October, Pg. 21. Formal Opinion 69: Propriety of Communicating With Employee or Former Employee of an Adverse Party Organizational-Revised Opinion Adopted June 19, 2010
October 2010
Vol. 39, No. 10 [Page 21]
Introduction and Scope
Members of the Bar are concerned about the propriety of communicating with an employee or former employee (or other agent) of a represented organization. This opinion provides guidance in this area. It is intended to cover not only the situation where attorneys wish to communicate with the employee of a represented organization that is a party to litigation, but also those situations where there is actual knowledge of representation prior to litigation. This opinion does not address the scope of the attorney-client privilege, the persons protected under the privilege, or the limitations on ex parte contacts that flow from the existence of the privilege. See Upjohn Co. v. U.S., 449 U.S. 383 (1981); Wright v. Group Health Hospital, 103 Wash.2d 192, 691 P.2d 564 (1984).
The Committee issued an earlier version of this opinion based on DR 7-104(A)(1) of the Colorado Code of Professional Responsibility. The Committee later issued an addendum to that opinion when the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RPC) were adopted effective January 1, 1993. The Colorado Supreme Court repealed and reenacted the Colorado Rules effective January 1, 2008. The Committee believes that it is appropriate at this time to issue a revised opinion based on the current Colorado Rules. Because members of the Bar relied on the earlier version of this opinion, in large part this opinion tracks the organization of the earlier version. The Committee has removed discussion of issues that were clarified under the Colorado Rules.
Syllabus
When deciding whether or not to communicate with a current employee or constituent(fn1) of an organization, which organization a lawyer knows to be represented on the subject matter of the proposed communication, the lawyer should obtain the prior consent of the lawyer representing that organization in that matter if the person is a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter, or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization, unless the communication is otherwise permitted by law or a court order.
Consent of the organization's lawyer is not required for communication with a former constituent. In communicating with a former constituent, a lawyer must not use methods that violate the legal rights of the organization, including methods that might invade the attorney-client privilege of the organization.
A lawyer does not avoid the requirement of obtaining the prior consent of the organization's lawyer by directing another to communicate with the organization's current constituent.
An attorney may interview a former constituent ex parte with regard to all matters except as to communications that are the subject of the attorney-client privilege.
Analysis
Colo. RPC 4.2 provides as follows:
Communicating With Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
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