Opinions of the General Counsel, 0717 ALBJ, 78 The Alabama Lawyer 320 (2013)
| Author | J. Douglas McElvy, J. |
J. Douglas McElvy, J.
Lawyer May Contact Former Employee of Opposing Party Ex Parte unless Contact Is Intended to Deal with Privileged Matter
QUESTION:
"I have filed two complaints against Acme ("Acme"), copies enclosed. The suit in Any County is a proposed class action which alleges improper mortgage balances and interest rates charged to Acme customers. The suit charges Acme with fraud and breach of contract. The crux of the complaint filed in Low County is outrage, slander, invasion of privacy and intentional infliction of emotional distress arising out of the branch manager's treatment of an Acme customer.
"The credit union president, John Don, has been named as a defendant in both suits. Mr. Don's former secretary, Amy Honey, has retained our firm to represent her in connection with sex discrimination arising out of Mr. Don's treatment of Mrs. Honey when she became pregnant and took maternity leave. Upon return after maternity leave, Mrs. Honey learned that she had been replaced.
"As stated, Mrs. Honey was employed by Acme as Mr. Don's secretary. She typed correspondence to and received correspondence from Acme's legal counsel pertaining to the two cases I already have pending. She also had specific conversations with Mr. Don about the two cases I have pending.
"We need a written opinion as to whether Rule 4.2 or any other rule of professional conduct precludes me from asking Mrs. Honey about facts or information she knows concerning the two previously filed cases."
ANSWER:
You are not precluded from communicating with this former employee under the set of facts you have described in your request.
DISCUSSION:
Rule 4.2 of the Rules of Professional Conduct prohibits communication about the subject matter of the representation with a "party" known to be represented by other counsel.
Consent of the other counsel obviates the problem. Rule 4.2 is a successor to Alabama DR 7-104(A)(1) and two provisions are substantially identical. In RO-88-34 (also published in The Alabama Lawyer), the Disciplinary Commission held that a plaintiff's counsel in a tort claim action could contact and interview current corporate employees/witnesses. There can be no ex...
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