St. Mary's Law Journal


Present and former employees of an opposing party are often the best source of information concerning that party’s activities. Contact with these employees or their representatives may be considered ethical or unethical depending on the circumstances. Unfortunately, the rules governing such contacts are neither clear nor consistent. The first issue lawyers must resolve is whether the present and former employees are considered “represented” under Rule 4.2 of the Model Rules of Professional Conduct. If they are “unrepresented” for purposes of Rule 4.2, the issue then becomes whether Rule 4.3 applies. Of grave importance are the potential sanctions, which include the exclusion of unlawfully or unethically obtained evidence and lawyer disqualification. As a matter of law, the acceptable limits of contact with present and former employees of an opposing party vary according to jurisdiction. In both multi-state and federal litigation, some jurisdictions use the Model Rules of Professional Conduct, while others rely on the ABA Model Code. Federal litigants must also be aware of so-called national ethical standards. These “national standards” can involve the Model Code, Model Rules, the applicable state’s disciplinary rules, and even “the ethical rules announced in the national profession in the light of public interest.” Meaning, lawyers must consult several sets of laws and rules before choosing a course of action. Even though the knowledge held by present and former employees can be a goldmine, attempting to obtain that knowledge outside the formal discovery process can be dangerous. Thus, the result of such risky behavior can potentially be more of a minefield than a goldmine. Attorneys must keep the above-mentioned rules and court decisions in mind when participating in such a treacherous game. And although the payoff may be great, the consequences could be disastrous.


St. Mary's University School of Law