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Would you kindly advise me whether it would be appropriate for me as attorney for the plaintiff to communicate with any of the following persons in connection with the matters involved in a pending action by plaintiff against defendant, a corporation, in which action the corporation defendant is represented by counsel, but the persons mentioned below are not parties to the action.
A present employee of defendant corporation who was, also an employee at the time the cause of action arose.
A present employee of defendant corporation who was not an employee at the time the cause of action arose.
An employee at the time the cause of action arose but is no longer an employee of defendant corporation.
Is the answer different if such employee were an employee of defendant corporation in an executive or managerial capacity?
Is the answer different if such employee had been produced by the defendant corporation at an examination before trial as its agent with knowledge of the facts?
Canon 9 is applicable:
“9, NEGOTIATIONS WITH OPPOSITE PARTY.
“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
A corporate party represented by counsel should be shielded by Canon 9 from approaches by an attorney for its adverse party to all of the corporation’s present employees, It is immaterial whether such employees are in ministerial categories or have the capacity to bind the corporate employer. The fact that the corporation and its current employees are represented by counsel is sufficient to protect them from interference or contact by opposing counsel. Former employees should not be deemed to be represented by corporate counsel and may be freely interviewed to the same extent as other witnesses who are not parties to the action.
June 5, 1964