You have advised us that you are representing two former employees of a corporation for claims for severance pay arising out of their termination. In aid of preparing a complaint, you contacted former officers of the defendant corporation. You stressed that these persons left prior to your clients and were not involved in their terminations, but had been involved in the setting of policy regarding severance pay prior to that. You also clearly set forth your interest in questioning them.
When you communicated with one of the former officers regarding his testimony at trial, the corporation's defense counsel called you, inquired whether you were speaking with former officers, and when you acknowledged it, he claimed what you were doing was unethical. You agreed to no further ex parte communications and wish an advisory opinion from us.
First of all, you should know that our charge is limited to providing guidance as to prospective conduct by our members. We do not generally opine on the ethicality of past conduct.
Rule of Professional Conduct 4.2 prohibits direct communications with persons represented by counsel, without the consent of the other lawyer or as authorized by law. The Comment to the Rule states that in the case of an organization, the Rule prohibits communications with persons having a managerial responsibility on behalf of the organization, or with a person whose act or omission in connection with the 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 tenor of the Comment would seem to extend the prohibition to persons who were involved as in your situation even though they are no longer employed by the corporation. However, no Guidance Opinion or case has been found which extends the prohibition beyond current high level employees. See, e.g., Wright v. Group Health Hospital, 691 P.2d 564 (1984); In re FMC Corp., 430. F. Supp. 1108 (1977). Accordingly, the Committee is of the opinion that your direct communications with former employees, who are not parties to the case, are not prohibited.