These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 78 - Communicating with an Employee of a Corporate Adversary
LEO NumTopicsSummaryDate
0353

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15-Representing Other Entities - Miscellaneous

78-Communicating with an Employee of a Corporate Adversary

A law firm representing a labor union may not communicate with the union's president if the president is an adverse party in current litigation involving the union. 1/7/1980
1190

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28-Law Firm Staff

78-Communicating with an Employee of a Corporate Adversary

A lawyer and a legal assistant may contact representatives of a potential adversary in a patent or trademark case because the lawyer has a duty to investigate any possible claim and it is not yet known whether any actual adversity exists.Legal assistants are bound by the Code when assisting lawyers with client matters. 1/4/1989
1589

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25-Dealing with Unrepresented People

57-In-House Lawyers

71-Representing Corporations

78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate directly with a former employee of an adverse party unless the lawyer knows that the former employee is represented by counsel. A corporation's lawyer may not simply advise a former employee that the lawyer is representing the former employee individually and direct the former employee not to speak with opposing counsel. Former employees have the right to choose their own counsel, and until they have done so the corporation's lawyer must treat them as unrepresented parties with potentially adverse interests (and thus may only advise them to secure counsel). [Rule 3.4(g) allows a lawyer to request that former employees of a corporate client "refrain from voluntarily giving relevant information to another party" under certain circumstances.]4/11/1994
1749

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate ex parte with former employees of a corporate adversary, but may not inquire into matters known or "reasonably apprehended" to be confidential or privileged. Under Rule 3.4(f), the corporation’s lawyer "may request that the former employee not communicate with opposing counsel."3/21/2001
0347

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate with an employee of corporate adversary as long as the employee is not the corporation's "alter ego". [Rule 4.2 Comment [4] adopts the "control group" analysis for determining the ethical propriety of communications with employees of an adverse organization.]12/4/1979
0533

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may communicate with former officers, directors and employees of corporate opponent, unless the lawyer knows that they are represented. 12/16/1983
1670

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may conduct ex parte interviews with a corporate adversary's former employee because the former employee "no longer speaks for the corporation or binds it by his or her acts or omissions." The Bar disagrees with recent decisions to the contrary, and affirms its application of the "control group" standard for determining the permissibility of ex parte contacts with current employees of corporate adversaries. 4/1/1996
0530

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may contact a corporate opponent's employees if the lawyer discloses the adversity and the employees are not the corporation's "alter ego." 11/23/1983
0905

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may contact an adversary's employee even if the employee is in a managerial position, as long as the employee is without authority to act on behalf of the corporation in that matter; the lawyer must disclose the lawyer's adversarial role to the employee. The Bar indicated that the lawyer must also "ascertain whether that employee feels that his employment or his situation requires that he first communicate with counsel for the corporate entity." 3/17/1987
0795

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may contact an adversary's employees if they are not in the "control group". 5/1/1986
0801

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may contact an adversary's employees if they are not in the "control group". 5/27/1986
1821

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1-Adversity to Current Clients

63-Lawyers Acting as Corporate Officers or Directors

78-Communicating with an Employee of a Corporate Adversary

A lawyer may file a lawsuit against a trust company on whose board the lawyer's partner sits (but who does not represent the trust department) if (1) the "affected client/clients" (the plaintiff suing the trust company) consents; and (2) the lawyer "reasonably believes" that he can "provide competent, diligent representation" to his clients. Although the board member's recusal is not mentioned as a cure in the rules, it is a factor in analyzing the second requirement, which could be met if the board (in consultation with its lawyer) allows such recusal, after considering "such matters as whether the litigation is 'routine' or 'non-routine' in the course of the board's business; whether the claim goes to matters that had been determined by the board, or lower level administrative staff; and whether the claim involves matters on which [the partner who is a member of the board] has voted or has been involved in." The board member's resignation might cure the conflict, unless there is some contractual undertaking that would affect his post-withdrawal activities. Under Rule 4.2, the plaintiff's lawyer should not have dealt with the company through his partner who serves on the board, but rather through the lawyer representing the trust company.1/11/2006
0459

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may not communicate with a corporate opponent's employees who are the corporation's "alter ego" (including store managers). [Rule 4.2 Comment [4] adopts the "control group" analysis for determining the ethical propriety of communications with employees of an adverse organization.]7/21/1982
0507

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78-Communicating with an Employee of a Corporate Adversary

A lawyer may not contact ex parte the "regional manager" of a corporate opponent. 3/30/1983
0651

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may not obtain information or documents from a former employee of opposing counsel, or review an opposing counsel's file inadvertently left in the lawyer's office if the lawyer's conduct is "deliberately wrongful" or involves dishonesty, fraud, deceit or misrepresentation. [This LEO was overruled by LEO 1702, which would require the lawyer to refrain from reviewing this material.]1/14/1985
1524

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3-Multiple Representations on the Same Matter

78-Communicating with an Employee of a Corporate Adversary

A lawyer may not represent a beneficiary in a wrongful death action without the consent of all the statutory beneficiaries. The lawyer may not contact the insurance adjuster if the defendant insured is represented by counsel. 5/11/1993
0523

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4-Witness-Advocate Rule

32-Lawyers Acting in Other Roles (Miscellaneous)

78-Communicating with an Employee of a Corporate Adversary

A lawyer may not send pleadings to the Board of Directors of an adversary's client, even if the lawyer believes that the Board has been misinformed. A lawyer whose partner serves as an escheator may not represent a landowner whose property may be involved, because the partner may be called as a witness. 8/1/1983
1527

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78-Communicating with an Employee of a Corporate Adversary

A lawyer/shareholder who has filed a suit in his or her own name against a corporation may not contact its officers, directors, or "control group" employees without the consent of the corporation's lawyer. 5/11/1993
1169

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54-Insurance Defense Lawyers

78-Communicating with an Employee of a Corporate Adversary

A plaintiff's lawyer may not communicate with an insurance adjuster in an effort to settle a case in which the defendant is represented by a lawyer, unless that lawyer consents. 10/20/1988
ABA-461

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23-Communicating with an Adversary - Miscellaneous

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

Although Rule 8.4(a) prohibits lawyers from violating the ethics rules through another, clients may communicate ex parte with represented persons and Rule 4.2 cmt. [4] allows lawyers to advise their clients concerning such communications. Although some states prohibit lawyers from suggesting that their clients communicate ex parte with represented adversaries, or forbid lawyers from drafting talking points or pertinent documents relating to such communications, such a strict approach tends to harm unsophisticated clients who might not recognize the benefit of such communications or who might require a lawyer's assistance. Thus, "the lawyer may take the initiative and advise the client that it may be desirable at a particular time for the client to communicate directly with the other party." In addition, "a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who the lawyer or the client conceives of the idea of having the communication. . . . the lawyer may review, redraft and approve a letter or a set of talking points that the client has drafted and wishes to use in her communications with her represented adversary. . . . The client also could request that the lawyer draft the basic terms of a proposed settlement that she wishes to have with her adverse spouse, or to draft a formal agreement ready for execution." Despite this freedom to assist clients in such ex parte communications, lawyers must avoid overreaching. "Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel. To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information. If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement."8/4/2011
0687

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54-Insurance Defense Lawyers

78-Communicating with an Employee of a Corporate Adversary

Plaintiff's lawyer may not directly contact defendant's insurer to open settlement negotiations without obtaining the consent of the lawyer for the defendant and the insurer. 5/29/1985
ABA-443

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57-In-House Lawyers

78-Communicating with an Employee of a Corporate Adversary

Rule 4.2 is designed to protect a person "against possible overreaching by adverse lawyers who are participating in the matter, interference by those lawyers with the client lawyer relationship, and the uncounseled disclosure of information regarding the representation." The protections of Rule 4.2 "are not needed when the constituent of an organization is a lawyer employee of that organization who is acting as a lawyer for that organization," so "inside counsel ordinarily are available for contact by counsel for the opposing party." Adverse counsel can freely contact an in-house lawyer unless: the in-house lawyer is "part of a constituent group of the organization as described in Rule 4.2 Comment [7] as, for example, when the lawyer participating in giving business advice or in making decisions which gave rise to the issues which are in dispute"; the in-house lawyer "is in fact a party in the matter and represented by the same counsel as the organization; "in a rare case adverse counsel is asked not to communicate about a matter with outside counsel." The opinion does not analyze the circumstance in which an in-house lawyer is "simultaneously serving as counsel for an organization in a matter while also being a party to, or having their own independent counsel in, that matter."8/5/2006
ABA-396

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48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

The rule prohibiting a lawyer from knowingly communicating with a represented adverse party: applies in the civil and criminal context; cannot be waived by the client; prohibits the lawyer from ignoring evidence that the other party is represented (the lawyer may want to contact a person's previous lawyer to confirm that the representation has ended); does not prohibit communications unrelated to the subject of the representation (a lawyer cannot prohibit all ex parte communications between the client and other lawyers by claiming that the lawyer represents the client "for all purposes"); prohibits communications with corporate employees "with managerial responsibilities," who "may legally bind the organization with respect to the matter in question," or "whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization"; prohibits such communication even if the represented person initiates the communication; does not prohibit contact with former officers or employees; allows communication with a person who claims no longer to be represented only if the lawyer has "reasonable assurance" that the representation has ended; prohibits the lawyer from directing an agent to communicate in violation of the rule; permits communications "authorized by law" (meaning that the communications were approved by a statutory authority).7/28/1995
ABA-359

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78-Communicating with an Employee of a Corporate Adversary

The rules prohibiting ex parte contacts with certain employees of a corporate adversary do not extend to former employees. 3/22/1991
1863

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23-Communicating with an Adversary - Miscellaneous

54-Insurance Defense Lawyers

78-Communicating with an Employee of a Corporate Adversary

Virginia case law and ethics opinions "suggest" that a lawyer hired by an insurance company to represent its insured represents only the insured. On the other hand, absent a conflict of interest, the same lawyer may represent both the insurance company and the insured. Given this situation, a plaintiff's lawyer may communicate ex parte with the insurance adjuster or other insurance company executive without the insured's defense lawyer's consent -- "unless the plaintiff's lawyer is aware that the defendant/insured's lawyer also represents the insurer [overruling LEOs 550, 687, 1169 and 1524 to the extent that it implies otherwise]." [overruled in LEO 1863 (9/26/12), which indicated that plaintiff's lawyer may speak ex parte with an insurance adjuster or other insurance company executive unless the plaintiff's lawyer is aware that the insured's lawyer also represents the insurance company]9/26/2012

Copyright 2000, Thomas E. Spahn