Hillary Lukacs from Morris, Manning & Martin, Atlanta. (Courtesy photo)

If you are involved in a lawsuit against an organization, interviews with former employees of that organization can decide or nullify your case. While these communications do not require the consent of the opposing attorney, the State Bar of Georgia recently made it clear what ethical considerations still apply.

On March 25, the State Bar of Georgia filed a motion with the Georgia Supreme Court to review Formal Advisory Opinion Board No. 20-1. The report is the new version of the Formal Advisory Opinion No. 94-3, which allows a opposing attorney to communicate with former employees of an attorney-represented organization to obtain information relevant to the dispute. However, these communications are not without ethical limitations and requirements. Formal Advisory Opinion No. 20-1 is intended to clarify these limitations and requirements.

Georgia Rule of Professional Conduct 4.2 (a), commonly known as the “Anti-Contact Rule”, provides: “A lawyer representing a client in a matter must not communicate with anyone he knows about the subject of representation have the matter represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. “

Comment 4A of the rule extends its application to some, but not all, of the members of an opposing party organization. Specifically, Comment 4A explains: “In the case of an organization, [Rule 4.2] Prohibits communication with any agent or employee of the organization who oversees, directs or regularly consults the organization’s attorney in this matter, or is empowered to bind the organization in relation to the matter or imputed his act or omission in connection with the matter can be sent to the organization for civil or criminal reasons. “

Formal Advisory Opinion No. 20-1 reiterates the longstanding rationale for exempting former employees from the scope of Rule 4.2 (a). In particular, a different interpretation of Rule 4.2 would give the organization’s legal counsel “a right to control information that is not supported by any professional code”. The reformulated statement also justifies that because Comment 4A “does not indicate anywhere that a former employee falls under the protection of Rule 4.2,” such an omission could only mean that Rule 4.2 does not apply to former employees.

However, the most notable aspect of the reformulated opinion is its discussion of the ethical limitations and requirements that will be placed on attorneys wishing to participate in these communications.

Formal Advisory Opinion No. 94-3 states that an attorney must make the following disclosures to the former employee before beginning communications: (i) the identity of the attorney’s client, (ii) the reason for contacting, (iii ) the purpose of the interview; and (iv) “any other information that is necessary in the circumstances so as not to render the interview misleading”. Formal Advisory Opinion No. 20-1 now expands the “other information” required by stating that an attorney must also disclose (i) the nature of that client’s interest in the organization and (ii) the core of the information sought .

Formal Advisory Opinion No. 94-3 also states that an attorney must obtain the consent of the former employee to attend the interview, which, if refused, would force the attorney to resort to the investigative process. Formal Advisory Opinion # 20-1 now clarifies that an attorney must make the necessary disclosures before seeking the consent of the former employee. In this regard, the revised opinion makes it clearer that this disclosure and the consent of the former employee are required regardless of whether the organization (ie the former employer) is represented by legal counsel.

Finally, Formal Advisory Opinion No. 20-1 contains a more detailed discussion of a lawyer’s obligation to avoid methods of obtaining information that would violate the legal rights of the former employee or organization, such as privilege or “some other privilege of evidencing.” The newly formulated statement also speaks in favor of the prohibition of direct communication with former employees insofar as the former employee has already hired legal counsel – a topic on which formal statement No. 94-3 is silent.

In summary, formal advisory opinion no. 20-1 refines the parameters and processes for communication with former employees of an opposing organization. When the Supreme Court approves or changes the opinion, it becomes binding on all members of the prosecution, is published in the Georgia Court Official Handbook and Lawyers’ Code, and has the same precedent as regularly published Supreme Court legal opinions.

Hillary Lukacs is an associate in the Litigation Group at Morris, Manning & Martin, Atlanta. She states that this article is for informational purposes only and is not intended as legal advice.