Ex Parte Communications with Former Employees of an Opposing Party
Initiating ex parte
contact with a former employee could raise serious ethical concerns if the
opposing party is represented by counsel.
turnover is not uncommon within the construction industry. Accordingly, a lawyer
engaged in construction litigation may often find that a former employee of an
opposing party possesses information and insights that are relevant to the
issues in dispute. In that situation, an informal interview with that former
employee may prove to be a valuable, and relatively inexpensive, endeavor.
However, initiating ex parte contact with a former employee could raise
serious ethical concerns if the opposing party is represented by counsel.
6.5.2 Ethical Rule 4.2
has adopted Rule 4.2 of the American Bar Association’s Model Rules of
Professional Conduct, which prohibits ex parte communications with
represented parties in a matter regarding the subject of the immediate
Specifically, Ethical Rule 4.2 provides:
representing a client, a lawyer shall not communicate about the subject of the
representation with a party 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 by law to do so.
purposes of Ethical Rule 4.2, a person being provided limited-scope
representation pursuant to Ethical Rule 1.2(c) is considered to be unrepresented
unless the opposing party or lawyer is aware of both the existence of the
limited-scope representation and the identity of the lawyer providing the
the case of a represented organization, the Comment to Ethical Rule 4.2 explains
that a lawyer is prohibited from engaging in ex parte communications with
three sets of individuals: (a) employees who have a managerial responsibility on
behalf of the organization; (b) employees whose acts or omissions in connection
with the matter may be imputed to the organization for purposes of civil or
criminal liability; and (c) employees whose statement may constitute an
admission on the part of the organization.
The Comment, however, does not clarify the applicability of Ethical Rule 4.2 to
a represented organization’s former employees.
§ 6.5.3 Arizona’s View
regards ex parte communications with former employees of a represented
organization, Arizona has adopted a modified version of the majority view. Under
the majority view, ex parte communications with former employees are not
In Arizona, ex parte communications with former employees of a
represented organization are generally permitted under Ethical Rule 4.2, with
two exceptions: (a) when the former employee’s acts or omissions gave rise to
the subject litigation; and (b) when the former employee has an ongoing
relationship with the former employer in connection with the litigation.
This rule applies even where the former employee is currently employed by the
party whose lawyer wishes to interview him or her.
Whether a former employee’s acts or omissions gave rise to the immediate
litigation may be readily ascertained through disclosure and discovery. But
whether the former employee has an “ongoing relationship” sufficient to justify
a prohibition against ex parte contact is a more complicated inquiry, and
the courts have declined to define a bright-line test with respect to this
On one hand, mere knowledge of damaging information is insufficient to
constitute such an “ongoing relationship.”
On the other hand, the former employee having knowledge of confidential
information or participating in the former employer’s defense are factors that
weigh in favor of finding an “ongoing relationship,” though the exact level to
which such knowledge and participation must rise to tip the balance is unclear.
§ 6.5.4 Conclusion
will not often be immediately apparent whether ex parte contact with a
represented organization’s former employee is permitted under Ethical Rule 4.2,
it is best to always proceed with caution. The most practical and safe approach,
as noted by several commentators, is to secure permission to communicate with
the former employee in writing from either the former employer’s lawyer or the
court before contacting the former employee.
Where the former employee is separately represented in the matter, his or
her own counsel’s consent will be sufficient to satisfy Ethical Rule 4.2.
taking steps to comply with Ethical Rule 4.2, a prudent lawyer must also bear in
mind other ethical responsibilities that come into play when performing an
informal ex parte interview of a former employee. For instance, Ethical
Rule 4.4 mandates that the interviewing lawyer avoid all inquiries into matters
that may involve privileged communications between the former employee and his
former employer’s attorney.
Additionally, pursuant to Ethical Rule 4.3, the interviewing attorney must
ensure that his or her role in the matter is made clear to the former employee,
which includes informing the former employee of the nature of the case, the
identity of the lawyer’s client, and that the employee’s former employer is an
 Ariz. R. Sup. Ct. 42, ER 4.2 cmt. 1 (“This Rule
does not prohibit communication with a party, or an employee or agent of
a party, concerning matters outside the representation.”).
 Ariz. R. Sup. Ct. 42, ER 4.2.
 Ariz. R. Sup. Ct. 42, ER 4.2 cmt. 4 (2013 Amend.).
 Ariz. R. Sup. Ct. 42, ER 4.2 cmt. 2; Lang v.
Superior Court, 170 Ariz. 602, 604-05, 826 P.2d 1228, 1230-31 (App.
 Benjamin J. Vernia, Right of Attorney to
Conduct Ex Parte Interviews With Former Corporate Employees, 57
A.L.R.5th 633, at § 2[a] (1998); Lang, 170 Ariz. at 605, 826 P.2d
 Lang, 170 Ariz. at 607, 826 P.2d at 1233.
 Arizona Committee on the Rules of Professional
Conduct, Formal Op. 2000-05 (Sep. 2000).
 See Lang, 170 Ariz. at 608, 826 P.2d at
 Id. at 607, 826 P.2d at 1233.
 Id. at 607-08, 826 P.2d at 1233-34.
 Jessica J. Berch & Michael A. Berch, May I
Have a Word With You: Oops, Have I Already Violated the No-Contact Rule?,
6 Phoenix L. Rev. 433,
461-62 (2013); David D. Dodge, Risky Business Practice: When
Conversation Can Hurt Your Case, 38
Ariz. Att’y 14, 15 (Nov. 2001); Heidi L. McNeil & Sara R.
Roberson, Ex Parte Communications with Former Employees of an
Adversary: When are They Permitted?, 32
Ariz. Att’y, 19, 24 (Jan.
 Ariz. R. Sup. Ct. 42, ER 4.2 cmt. 2.
 McNeil & Roberson, supra note 11, at 24.
 Id.; Arizona Committee on the Rules of
Professional Conduct, Formal Op. 2000-05 (Sep. 2000).