Ethics Opinion

Opinion 88-14

FLORIDA BAR ETHICS OPINION
OPINION 88-14
March 7, 1989
Advisory ethics opinions are not binding.
A plaintiff’s attorney may communicate with former managers and former employees of a
defendant corporation without seeking and obtaining consent of corporation’s attorney.
Note: This opinion was approved by the Board of Governors at its March 1989 meeting.
While opinion 88-14 permits certain direct contacts with former employees of a
represented corporation, it does not purport to address the possibility of disqualification in
litigation. See H.B.A. Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997).
But see, Rentclub v. Transamerica, 811 F.Supp. 651 (M.D. Fla. 1992), aff’d 43 F.3d 1439
(11th Cir. 1995).
RPC:
CPR:
Opinions:

Case:
Statutes:
Misc:

4-4.2; ABA Model 4.2
DR 7-104(A)(1)
Alaska 88-3, Colorado 69, Illinois 85-12, Los Angeles Co. 369, Maryland 86-13,
Massachusetts 82-7, Michigan CI-597, N.Y. City 80-46, N.Y. County 528,
Virginia 533, Wisconsin E-82-10
Wright v. Group Health Hospital, 691 P.2d 564 (Wash. 1984)
F.S. 90.803(18)(e); Florida Evidence Code
Fed.R.Evid. 801(d)(2)(D)

The inquiring attorney’s law firm represents the plaintiffs in a civil action against a
corporation. The attorneys wish to have ex parte interviews with former employees of the
defendant corporation who were employed by the corporation during the period when the actions
or decisions on which the suit is based occurred. The former employees may include some who
had managerial responsibilities and some whose acts or omissions during their employment
might be imputed to the corporation for purposes of civil liability. As is usually the case, the
defendant corporation objects to ex parte contacts with its former employees.
The issue is whether Rule 4-4.2, Rules Regulating The Florida Bar, proscribes the
plaintiffs’ attorneys from contacting former managers and other former employees of the
defendant corporation except with the permission of the corporation’s attorneys. As regards
former managers and other former employees who have not maintained any ties with the
corporation—who are no longer part of the corporate entity — and who have not sought or
consented to be represented in the matter by the corporation’s attorneys, the answer must be in
the negative.
Rule 4-4.2 is substantially the same as its predecessors in the Code of Professional
Responsibility (DR 7-104(A)(1)) and the earlier Canons of Professional Ethics (Canon 9). (The
American Bar Association’s “code comparison” for Model Rule 4.2 states that the rule is
“substantially identical” to DR 7-104(A)(1).)

The rule forbids a lawyer to communicate about the subject of the representation with a
person the lawyer knows to be represented in the matter unless the lawyer obtains the permission
of the person’s counsel. The comment to the rule states that in the case of organizations
(including corporations), the rule prohibits ex parte communications with “persons having a
managerial responsibility on behalf of the organization and with any other person 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.” The comment further states that if an agent or employee of the organization is
represented by his or her own counsel in the matter, then it is the consent of that lawyer—not the
organization’s lawyer—that must be obtained.
Nothing in Rule 4-4.2 or the comment states whether the rule applies to communications
with former managers and other former employees. To the extent that the comment implies that
the rule does apply to these individuals, it is contrary to ethics committees’ interpretation of the
rule.
Rule 4-4.2 cannot reasonably be construed as requiring a lawyer to obtain permission of a
corporate party’s attorney in order to communicate with former managers or other former
employees of the corporation unless such individuals have in fact consented to or requested
representation by the corporation’s attorney. A former manager or other employee who has not
maintained ties to the corporation (as a litigation consultant, for example) is no longer part of the
corporate entity and therefore is not subject to the control or authority of the corporation’s
attorney. In many cases it may be true that the interests of the former manager or employee are
not allied with the interests of the corporation. In such cases the conflict of interests would
preclude the corporation’s attorney from actually representing the individual and therefore would
preclude the corporation’s attorney from controlling access to the individual. As the comment
indicates with regard to current employees, if a former manager or former employee is
represented in the matter by his personal attorney, permission of that attorney must be obtained
for ex parte contacts, including contacts by the corporation’s attorney.
A former manager or employee is no longer in a position to speak for the corporation.
Further, under both the federal and the Florida rules of evidence, statements that might be made
by a former manager or other former employee during an ex parte interview would not be
admissible against the corporation. Both Rule 801(d)(2)(D), Federal Rules of Evidence, and
Section 90.803(18)(e), Florida Evidence Code, provide that a statement by an agent or servant of
a party is admissible against the party if it concerns a matter within the scope of the agency or
employment and is made during the existence of the agency or employment relationship.
This Committee has not previously had occasion to issue an opinion on the question of
communicating with former managers and employees but, as indicated above, bar ethics
committees in a number of states have done so. The clear consensus is that former managers and
other former employees are not within the scope of the rule against ex parte contacts. Alaska Bar
Opinion 88-3 (6/7/88) (Former employees are no longer part of corporate entity and no longer
can act or speak on behalf of corporation; opposing lawyer therefore may contact former
employees, including former members of corporation’s control group who dealt with subject
matter of litigation, but may not inquire into privileged communications); Colorado Bar Opinion
69 (Revised) (6/20/87) (Former employee cannot bind corporation as matter of law; lawyer may

interview opposing party’s former employees with regard to all matters except communications
within corporation’s attorney-client privilege); Illinois Bar Opinion 85-12 (4/4/86) (Former
employees, including those who were part of corporation’s control group, may be contacted
without permission of corporate counsel; direct communications with former control group
employees may elicit information adverse to corporation, but that direct contact no more
deprives corporation of benefit of counsel than does direct communication with any potential
witness); Los Angeles County, Calif., Bar Opinion 369 (11/23/77) (Although ethical dangers
may be posed if rule prohibiting ex parte contacts is not extended to former controlling
employees, no authority is found to support such extension); Maryland Bar Opinion 86-13
(8/30/85) (Lawyer may communicate with former employee of adverse corporate party if former
employee is not represented by counsel).
Also, Massachusetts Bar Opinion 82-7 (6/23/82) (Lawyer may communicate with former
employees of corporate defendant regarding matters within scope of their employment; former
employees enjoy no current agency relationship that is being served by corporate counsel’s
representation); Michigan Bar Opinion CI-597 (12/22/80) (Plaintiff’s attorney may communicate
with prospective witness, who is former employee of corporate defendant, on subject matter of
representation if employee is unrepresented); New York City Bar Opinion 80-46 (Former
employees are no longer part of corporate entity and may be contacted ex parte); New York
County Bar Opinion 528 (1965) (Although direct communication with any current manager or
employee of defendant corporation is improper, restriction does not apply to communications
with former employees); Virginia Bar Opinion 533 (12/16/83) (Lawyer may communicate
directly with former officers, directors and employees of adversary corporation on subject of
pending litigation unless lawyer has reason to know those witnesses are represented by counsel);
Wisconsin Bar Opinion E-82-10 (12/82) (Lawyer may contact former employee of opposing
party to obtain material information even though former employee was managing agent, if
former employee has severed all ties with corporation and therefore is not in position to commit
corporation).
See Wright v. Group Health Hospital, 691 P.2d 564 (Wash. 1984). In Wright, the
Washington Supreme Court ruled that because former employees cannot possibly speak for a
defendant corporation, the rule against communicating with adverse parties does not apply. The
court found no reason to distinguish between former employees who witnessed an event and
those whose act or omission caused the event. The court said the purpose of the communication
rule is not to protect a corporate party from revelation of prejudicial facts, but rather to preclude
interviewing of employees who have authority to bind the corporation.
As stated above, it is ethically permissible for the inquiring attorney to contact former
managers and other former employees of the opposing party without obtaining permission from
the corporation’s attorney unless those former employees are in fact represented by the
corporation’s attorney. But as indicated by some of the ethics committees cited above, the
attorney should not inquire into matters that are within the corporation’s attorney-client privilege
(e.g., asking a former manager to relate what he had told the corporation’s attorney concerning
the subject matter of the representation).