Ethics Opinion

Opinion 78-4

FLORIDA BAR ETHICS OPINION
OPINION 78-4
Advisory ethics opinions are not binding.
For purposes of the rule on communicating with a party, representation of a party commences
whenever an attorney-client relationship has been established with regard to a particular matter,
regardless of whether litigation has commenced. If an individual or corporation has general
counsel representing that party in all legal matters, communications must be with the attorney. A
corporate party’s officers, directors and managing agents are “parties” for purposes of
communications, but other employees of the corporation are not unless they have been directly
involved in the incident or matter giving rise to the investigation or litigation.
CPR:
Opinions:

DR 7-104(A)(1)
68-20, ABA Informal Opinion 1362

Mr. Richman stated the opinion of the committee:
The Committee is asked two questions concerning the application of DR
7-104(A)(1), which states:
During the course of his representation of a client a lawyer shall not
communicate or cause another to communicate on the subject of the
representation with a party he knows to be represented by a lawyer in that matter
unless he has the prior consent of the lawyer representing such other party or is
authorized by law to do so.
The two questions are: (1) When is a party sufficiently “represented by a
lawyer” to require application of DR 7-104(A)(1) so as to prohibit communication
with the party and, in specific, must litigation have commenced for the DR to
apply? (2) Where a potential suit or pending suit involves a corporation, who in
the corporate structure is considered to be a “party” within the meaning of the
DR?
The Committee’s unanimous answer to the first question is that representation of a party
commences whenever an attorney-client relationship has been established with regard to the
matter in question, regardless of whether or not litigation has commenced. In the opinion of the
majority of the Committee, in the case of even an individual or corporation that has general
counsel representing the individual or corporation in all legal matters, the DR would require
communication on the matter to be with the party’s attorney. This, of course, presupposes that, as
required by DR 7-104(A)(1), the lawyer “knows” of the existence of such representation. In the
opinion of four dissenting members of the Committee, where general counsel is involved there
would be no bar to communication until the particular matter has been referred to general
counsel for handling by the party.

The second question presents greater difficulty with regard to where or whether to draw
the line as to a corporation. The closest precedent in Florida is Opinion 68-20 [since withdrawn]
which found that:
There is no impropriety in an attorney representing a party in dealings with the
State Road Department contacting a member of the State Road Board or its staff
in connection with the interest of his client, so long as the matter and issue have
not been referred by the Board or its staff to its legal department.
The present Committee is sharply divided on this question. The majority would
distinguish this prior opinion or overrule it to the extent of holding that it is too restrictive upon
the right to interview certain members of a corporation when balanced against the need to
properly prepare and investigate litigation, particularly where litigation has not yet commenced.
By way of example, prior to instituting litigation, plaintiff’s attorney has both a need and
an obligation to gather sufficient facts to determine whether to commence litigation. In addition,
particularly in a large corporation, there may be numerous employees who are sufficiently
removed from the management of the company and from the potentiality of themselves being a
defendant in the potential or actual litigation so as to not reasonably be considered a “party” to
be represented by the corporation’s counsel.
Accordingly, in the opinion of the majority of the Committee, DR 7-104(A)(1) will apply
to officers, directors, or managing agents of the corporation but will not apply to other
employees of the corporation unless they have been directly involved in the incident or matter
giving rise to the investigation or litigation. The Committee further suggests that to comply with
the spirit of DR 7-104(A)(1) and in drawing the line at this point, the attorney should make no
statement which would have the effect of deceiving or misleading the employee, and the attorney
or the attorney’s agent must specifically identify the capacity in which they are conducting the
investigation.
The several dissenting members of the Committee would follow ABA Informal Opinion
1362 and the minority view of a number of ethics opinions relating to this subject as issued by
other states to the effect that no employee of a corporation, no matter how remote, can be the
subject of communication once litigation has commenced or once the attorney knows, as set
forth in Florida Opinion 68-20 [since withdrawn], that the matter in issue is being addressed or
considered by an attorney for the corporation.