Can You Contact a Defendant's Former Employees? Ethics Rules Every Plaintiff Attorney Should Know

Former employees are often the best witnesses a plaintiff can find. They saw how the company really operated, and they no longer have a paycheck riding on what they say. But before anyone on your team picks up the phone, it's worth knowing where the ethical lines are. A sloppy first contact can cost you a witness, invite a motion for sanctions, or in the worst cases put your firm's role in the case at risk.

This post walks through the rules plaintiff attorneys most often need to think about when contacting a defendant's former employees. It's a practical overview, not legal advice, and the rules vary by state, so always check your jurisdiction's version of the rules and any local case law before outreach begins.

The starting point: ABA Model Rule 4.2

Rule 4.2 bars a lawyer from communicating about the subject of a case with a person the lawyer knows is represented by counsel in that matter, unless that counsel consents. When the represented party is a company, the rule extends to certain current employees: people who supervise or regularly consult with the company's lawyers about the matter, who can bind the company, or whose conduct may be imputed to it.

Former employees are treated differently. The official comment to Rule 4.2 states that consent of the organization's lawyer is not required for communication with a former constituent, and ABA Formal Opinion 91-359 reached the same conclusion. In most jurisdictions, that means you can contact a defendant's former employees directly, without going through defense counsel.

There are two important exceptions to keep in mind:

• The former employee has their own lawyer. If you know a former employee is represented in the matter, Rule 4.2 applies to them personally, and you need their lawyer's consent.

• Your jurisdiction says otherwise. A minority of courts and state ethics opinions have placed limits on contact with certain former employees, especially former managers. Check before you assume.

It's also common for defense counsel to announce that they "represent" all former employees. Don't simply accept that. Ask whether a particular person has actually agreed to the representation, and confirm it with the witness directly.

Don't go near privileged information

Even when contact is allowed, the defendant's attorney-client privilege still belongs to the defendant. A former employee who sat in meetings with company counsel, helped prepare the company's response to an incident, or worked on the litigation can't waive that privilege for the company.

Courts have disqualified plaintiff counsel who interviewed former employees and drew out privileged information, even when the witness was willing to share it. Rule 4.4(a) also prohibits using methods of obtaining evidence that violate the legal rights of a third person. The safe approach:

• Ask early whether the witness ever spoke with company lawyers about the incident or the case.

• If they did, tell them not to share those conversations and steer the interview away from them.

• Stick to what the witness saw, heard, and did on the job.

• Document that you gave this instruction.

Be clear about who you are

A former employee who doesn't have a lawyer is an unrepresented person under Rule 4.3. You can't state or imply that you're disinterested, and if the witness seems confused about your role, you need to correct it. You also can't give them legal advice, other than suggesting they get their own lawyer, if their interests may conflict with your client's.

In practice, open every call by saying who you are, which firm you work with, and that you represent the plaintiff in a case against their former employer. Rules 4.1 and 8.4(c) also prohibit false statements and deception, so pretexting, posing as a journalist, a recruiter, or anyone else, is off the table.

Your investigators are your responsibility

Many firms use paralegals, investigators, or outside vendors to locate and contact witnesses. Under Rule 5.3, lawyers must make reasonable efforts to ensure that nonlawyers working for them follow the same professional rules. Rule 8.4(a) also makes it misconduct to violate the rules through the acts of another.

In other words, "the investigator did it" isn't a defense. Anyone contacting witnesses on your behalf should be briefed on identification, privilege, and represented-person rules, and should follow a written script or protocol.

What about NDAs and confidentiality agreements?

Former employees sometimes worry that a severance or confidentiality agreement stops them from talking. Agreements generally can't prevent a person from testifying truthfully under subpoena, and many states and federal laws limit how far these agreements can go in hiding information about safety issues or unlawful conduct. That said, an agreement may still cover genuine trade secrets or other proprietary information.

Don't tell a witness their agreement is unenforceable, and don't encourage them to breach it. If an agreement is a concern, the witness should talk to their own lawyer, and you may want to raise the issue with the court before relying on the testimony.

A quick pre-contact checklist

• Has your jurisdiction's version of Rule 4.2 and any related case law been reviewed?

• Do you know whether this witness has their own lawyer in the matter?

• Was the witness ever involved with company counsel or the company's litigation response?

• Does your script identify who's calling, who they represent, and why?

• Have investigators or vendors been trained on your contact protocol?

• Are you documenting each contact, including privilege instructions?

Find the right witnesses, and contact them the right way

At Stratejic Relationships, we work exclusively with plaintiff attorneys to find a defendant's former employees. Our Ex-Employee List (The EEL) delivers names, job titles, tenures, and active confirmed phone numbers, and our vetting process narrows that list to the witnesses most likely to help your case, so your attorneys spend their time on the right conversations.

Have a case where the inside story matters? Contact Stratejic to talk through your defendant and see what an EEL could uncover.

This article is for general informational purposes and is not legal advice. Ethics rules vary by jurisdiction.