, 100402 ALOGC, Formal 2002-03

Docket Nº:Formal 2002-03
Case Date:October 04, 2002
Court:Alabama Office of General Counsel
 
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Formal 2002-03

Formal Opinion 2002-03

Alabama Office of General Counsel

October 4, 2002

Contact permitted with employees of opposing party who are non-managerial, who are not responsible for act for which opposing party could be liable and who have no authority to make decisions about the litigation

#2002-03

QUESTION:

“I have a slip and fall case in a retail store and I would like an opinion as to whether I can contact directly some of the cashiers. It seems that my client slipped and fell in a certain area of the store. After she fell, she says that one of the cashiers told her that a store employee had been mopping or buffing in that area immediately before the fall and had left moisture. I would like to interview the cashiers to get that straight.

I would be grateful if you would give me an opinion as to whether such an interview would be allowed under the circumstances. It is not my understanding that the cashiers were the people who had done the mopping or buffing.”

ANSWER:

Pursuant to Rule 4.2 of the Rules of Professional Conduct of the Alabama State Bar, an attorney may communicate directly with an employee of a corporation or other organization who is the opposing party in pending litigation without the consent of opposing counsel if the employee does not have managerial responsibility in the organization, has not engaged in conduct for which the organization would be liable and is not someone whose statement may constitute an admission on the part of the organization. It is the opinion of the Disciplinary Commission of the Alabama State Bar that the third category, i.e., a “person . . . whose statement may constitute an admission on the part of the organization” should be limited to those employees who have authority on behalf of the organization to make decisions about the course of the litigation.

DISCUSSION:

Communication with persons represented by counsel is governed by Rule 4.2 of the Rules of Professional Conduct, which provides as follows:

“Rule 4.2 Communication With Person Represented by Counsel

In 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.”

When the represented party is a corporation or other organization, communication with some of the employees of the organization is also prohibited. [1]The Comment to Rule 4.2 delineates three categories of employees with whom communication is prohibited, viz:

“In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation 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...

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