In Georgia, former staff are given full disclosure |  Alston & Vogel

You see it all the time – lawyers contact former employees of an opposing company process. Our Litigation & Trial practice group has issued a new proposed State Bar of Georgia opinion that requires more explicit restrictions and disclosures.

  • Proposed Formal Opinion No. 20-1 asks for comments by December 16
  • Information that was just discussed before is now mandatory
  • Prohibitions on obtaining privileged information, more explicit

In Georgia, an attorney can interview a former employee of an organization represented by an attorney to obtain non-privileged information that could be used in a lawsuit against the organization. However, the lawyer must comply with the requirements of the Formal Advisory Opinion No. Follow 94-3. The expert opinion requires a lawyer to fully disclose the identity of his client and to obtain the consent of the former employee before initiating the interview. The statement also indicates that the former employee has the right to know the reason for contact, the purpose of the interview and any other information necessary to ensure that the interview is not misleading.

The State Bar of Georgia’s Formal Advisory Opinion Board has now released proposed Formal Opinion No. 20-1, which makes more explicit requirements for attorneys wishing to interview former employees of opposing organizations. Like Formal Advisory Opinion No. 94-3, the proposed Opinion still requires that a lawyer disclose the identity of his client to the former employee. However, the proposed opinion also specifically requires the attorney to disclose the nature of the client’s relationship with the organization, the reason for the communication and the gist of the information sought. While these issues were previously discussed in Formal Advisory Opinion No. 94-3, the proposed opinion clearly requires them to be disclosed before interviewing a former employee. Like Formal Advisory Opinion No. 94-3, the proposed opinion also requires the attorney to obtain the consent of the former employee to be heard, but the proposed opinion specifically requires that the attorney provide all necessary information before seeking the consent of the former employee .

In addition, the proposed opinion prohibits a lawyer from using methods of obtaining information that would violate the legal rights of the former employee or the organization represented. While Formal Advisory Opinion No. 94-3 states that an attorney may not obtain privileged information from a former employee, the proposed opinion is more detailed and explicit regarding the prohibition on obtaining privileged information. In addition, unlike Formal Opinion No. 94-3, which is silent on the matter, the proposed Opinion clearly prohibits a lawyer from communicating with the former employee if the lawyer knows or discovers that the former employee has been individually through one on the matter Attorney is represented. After all, both reports require that a lawyer provide a former employee with complete information, even if the opposing organization is not represented by a lawyer.

Georgia Bar Association members have until December 16, 2020 to submit comments on the proposed opinion. After the formal advisory body reviews these comments, it will decide whether to deliver the opinion.

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