## Facts

- A lawyer represented a corporation in litigation and also asserted representation of multiple corporate employees connected to the dispute.
- The lawyer also represented a former employee of the corporation.
- Opposing counsel sought to conduct an informal (ex parte) interview of the former employee.
- Opposing counsel took the position that the former employee was only a fact witness and was not part of the corporation’s “control group.”
- The ethics inquiry asked when corporate counsel may ethically claim concurrent representation of current and former employees in a way that would bar opposing counsel’s contact under Utah Rule of Professional Conduct 4.2, and what other rules limit counsel’s efforts to restrict witness communications.

## Issues

1. Under what circumstances may corporate counsel claim to represent current corporate employees so that opposing counsel is barred from communicating with them under Rule 4.2?
2. Under what circumstances may corporate counsel claim to represent a former employee so that opposing counsel is barred from communicating with that former employee under Rule 4.2?
3. What limits do Rules 3.4(f) and 1.7 impose on efforts to restrict opposing counsel’s informal interviews by asserting or creating employee representation?

## Decision

- Corporate counsel may treat certain current employees as “represented” for Rule 4.2 purposes only when Rule 4.2’s organizational-contact provisions apply (control group; conduct imputable to the organization; or statements that would bind the organization) and the employee is not separately represented.
- Beyond those Rule 4.2 categories, corporate counsel may not stop opposing counsel from contacting other current employees simply by announcing that counsel represents them; representation must be real and properly formed.
- Former employees are not automatically covered by the organization’s representation for Rule 4.2 purposes; corporate counsel generally may not block opposing counsel’s contact with a former employee unless there is an actual attorney-client relationship with that former employee in the matter.
- A blanket claim that corporate counsel represents “all” current and former employees, used as a tool to cut off informal interviews, is improper when it is not supported by genuine, individual attorney-client relationships and the limits of Rule 4.2.
- Rule 3.4(f) separately restricts counsel from asking a non-client witness to refrain from voluntarily giving relevant information to the opposing side, subject to narrow exceptions.
- If corporate counsel undertakes representation of employees (current or former) in addition to representing the corporation, counsel must evaluate conflicts and obtain any required informed consent under Rule 1.7 before proceeding.

## Legal Principles

- Rule 4.2 bars a lawyer from communicating about the subject of the representation with a person the lawyer knows is represented by counsel in the matter, unless the other lawyer consents or the communication is otherwise authorized.
- For an organizational client, Rule 4.2 treats certain current employees as represented by the organization’s lawyer (when not separately represented) if the lawyer knows the employee is:
  - a current member of the organization’s control group, or
  - a representative whose acts or omissions in the matter may be imputed to the organization, or
  - a representative whose statements would bind the organization for purposes of proof.
- A lawyer cannot create Rule 4.2 “no-contact” status by a unilateral declaration of representation; invoking Rule 4.2 requires a real attorney-client relationship or the specific organizational-constituent coverage recognized by the rule.
- Former employees are generally outside Rule 4.2’s organizational-constituent coverage; preventing ex parte contact with a former employee requires a genuine attorney-client relationship with that former employee.
- Rule 3.4(f) ordinarily forbids asking a person who is not the lawyer’s client to refrain from voluntarily giving relevant information to another party.
- Representing both a corporation and one or more employees in the same matter can create conflicts under Rule 1.7; if a conflict exists, counsel must determine whether the conflict is consentable and, if so, secure informed consent and comply with all related duties.

## Conclusion

Utah Ethics Opinion 04-06 concludes that corporate counsel may not use broad assertions of employee representation to prevent opposing counsel from informally interviewing witnesses. Rule 4.2’s protection extends automatically only to certain categories of current employees identified in the organizational-contact rule, and it does not automatically extend to former employees. Blocking contact with any employee outside those categories requires a genuine attorney-client relationship, and counsel must also comply with Rule 3.4(f)’s limits on restricting witness communications and Rule 1.7’s conflict requirements when representing both the organization and individual employees.


Utah Ethics Opinion 04-06, 2004 WL 2803333 (2004)