Ethics Committee Advisory Opinion #1984/5 4
November 13, 1984
During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party that he/she knows is represented by a lawyer in that matter, unless he/she has the prior consent of the lawyer representing that party, or is otherwise authorized by law to communicate with that party.
A lawyer representing one party in a lawsuit wishes to interview or take the statement of an opposing party. The lawyer has posed three queries:
- Whether it is proper to take the statement of the opposing party before suit is filed and that party has obtained counsel; and
- Whether it is proper to take the statement of a former agent or employee of the opposing party after suit has been filed and counsel has been retained (assuming that the former agent or employee whose statement is sought was an agent or employee of the opposing party at the time of the incident giving rise to the suit); and
- Whether it is proper to take the statement of a present agent or employee of the opposing party either (i) before suit has been filed, or (ii) after suit has been filed. For purposes of this question, the Committee is to assume that the agent or employee from whom a statement is sought, was an agent or employee of the opposing party at the time of the incident giving rise to the lawsuit, and continues in that relationship at the time the statement is sought, but the agent or employee is not the named defendant in the lawsuit.