When Can Plaintiffs' Attorneys Talk to Your Employees? - A Colorado Law Summary

Before employers are ever presented with a charge of discrimination or complaint in an employment lawsuit, plaintiffs’ counsel often investigate their client’s allegations by reaching out to speak with current and/or former employees of the company. The Rules of Professional Conduct, however, limit how and whether plaintiff’s counsel can contact current and/or former employee outside the presence of management’s counsel. This article analyzes some limitations on plaintiffs’ counsel’s communications with management’s current and former employees.

Plaintiffs’ Counsel Generally May Not Directly Contact a Supervisor Who Works for a Defendant Employer. 

Assuming the company is represented by its own attorney, plaintiffs’ counsel may not directly contact a currently-employed supervisor to discuss a claimant’s allegations or claims.[1] Specifically, Colorado Rules of Professional Conduct Rule 4.2 prohibits plaintiff’s counsel from having an ex parte conversation with the supervisor about the subject matter of the lawsuit, unless the company’s lawyer authorizes such contact.[2] 

Plaintiffs’ Counsel May Have Limited Communications With Supervisors Who No Longer Work for a Defendant Employer. 

Plaintiffs’ attorneys have greater leeway to directly contact a supervisor who no longer works for the company. Comment 7 to Rule 4.2 explains that “[c]onsent of the organization’s lawyer is not required for communication with a former constituent.”[3] 

However, plaintiffs’ counsel is limited in the scope of what may be discussed with a supervisor who no longer works for a company. First, plaintiffs’ counsel may not solicit or listen to a former supervisor’s discussion of privileged communications he or she had with the company.[4] This limitation exists because the privilege belongs to, and can only be waived by, the company.[5]

 Second, plaintiffs’ counsel must always be truthful when dealing with others, and must not use methods of obtaining evidence that violate the legal rights of the former supervisor or his or her former employer.[6]

Third, plaintiffs’ counsel: (1) may not give any legal advice—other than to secure counsel—to the unrepresented former employee where the lawyer knows or should know that the former employee’s interest may be adverse to the lawyer’s client; and (2) must correct any misunderstanding as to the lawyer’s role in the matter where the lawyer knows or has reason to know that the former employee misunderstands plaintiff’s counsel’s role in the matter.[7]

Plaintiffs’ Counsel May Generally Communicate With Current Non-Supervisors and Employees Who Do Not Regularly Consult With the Organization’s Attorneys.

Plaintiffs’ counsel face even fewer restrictions for a third category of employees—current (or former) non-supervisory employees who do not direct or regularly interact with the organization’s lawyers, do not have the authority to obligate the organization with respect to the matter at issue, or whose act or omission in connection with the matter may not be imputed to the organization for purposes of civil or criminal liability. Put differently, plaintiffs’ counsel may generally reach out to bystander fact witnesses, regardless of whether they are still employed with an organization.[8]

Conclusion

Plaintiffs’ counsel may be attempting to communicate with current and former employees before an employer is aware of the threat of a lawsuit. In many cases, such attempts to communicate with current and former employees are improper. Employers who believe that plaintiffs’ counsel is impermissibly contacting supervisors or otherwise engaging in impermissible inquiries should immediately notify their counsel. 

 

[1] For purposes of this analysis, the term “supervisor” also includes persons who “direct or regularly consult with the organization’s lawyer concerning the matter or [who have] authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be inputted to the organization for purposes of civil or criminal liability.” Colo. Rules of Prof’l Conduct R. 4.1, cmt. 7.

[2] See Colo. Rules of Prof’l Conduct R. 4.2.

[3] Id.; see also Sequa Corp. v. Lititech, 807 F. Supp. 653, 659-61 (D. Colo. 1992).  Of course, if the former supervisor is represented by his or her own counsel, plaintiff’s counsel must get the consent of that counsel to communicate with the former supervisor.  See Colo. Rules of Prof’l. Conduct R. 4.2, cmt. 7.  As a result, if plaintiff’s counsel wishes to have an ex parte conversation with the former supervisor, the lawyer should ensure that the former supervisor is not represented by legal counsel—either through the company or privately—and if so, that the former supervisor’s counsel has consented to the ex parte communication. 

[4] Colo. Rules of Prof’l Conduct R. 4.1. Federal courts have further cautioned plaintiff’s counsel to “inform the former employee not to divulge any communications that the former employee may have had with corporate or other counsel, and . . . explain that [counsel] represents an interest adverse to the corporation. See Davis v. Creditors Interchange Receivable Mgmt., LLC, 585 F. Supp. 2d 968 (N.D. Ohio 2008).

[5] An “organization’s [attorney-client] privilege belongs to the organization, not the constituent, and can be waived only by the organization.” (Colo. Ethics Op. 69.)

[6] Colo. Rules of Prof’l. Conduct R. 4.4(a), which states in relevant part “[i]n representing a client, a lawyer shall not . . . use methods of obtaining evidence that violate the legal rights of [a third person].”

[7] Colo. Rules of Prof’l. Conduct R. 4.3.

[8] See Timmerman v. U.S. Bank, 483 F.3d 1106, 1126 (10th Cir. 2007) (holding that plaintiff’s counsel did not violate ethical rules by contacting one of the defendant’s current employees who lacked authority to commit the defendant to a position with respect to the issue). As with former supervisors, plaintiffs’ counsel must be truthful when dealing with bystander fact witnesses.

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