Protecting Your Organization: Rules on Attorney Contact with Employees

In Virginia, there is an ethical rule that prohibits attorneys that are representing a client from speaking about the subject of representation with another person that is represented by another attorney for that matter.[1]  For example, say Employee A has hired Attorney A to represent her in a claim against Organization B before the Virginia Workers’ Compensation Commission (“Commission”).  The rule prohibits Organization B’s attorney from talking about the claim with Employee A without either Attorney A’s presence or permission, i.e. Organization B’s attorney could not have an ex parte communication with Employee A.

But what about the reverse?  Does Attorney A have to go through Organization B’s attorney to speak about the claim with every individual associated or employed with Organization B?  The answer is no, but there are categories of individuals associated with Organization B where Attorney A must go through Organization B’s attorney.

Along with the ethical rules that attorneys must adhere to in Virginia, there are comments that help attorneys in interpreting and applying the ethical rules in various cases.[2]  One of the comments to the rule on ex parte communications between attorneys and represented parties deals specifically with represented organizations.[3]  Prior to January 6, 2021, that comment to the rule indicated that it was prohibited for an attorney to communicate with the “organization’s ‘control group’ as defined in Upjohn v. United States, 449 U.S. 383 (1981).”[4]  Essentially, if an organization’s employee could bind the organization based on their status or position, then an attorney could not have an ex parte communication with that employee.[5]

However, the comment on ex parte communications between attorneys and represented parties was rewritten and adopted on January 6, 2021.[6]  The rewritten comment expanded the class of employees that attorneys cannot have ex parte communications with from individuals in the organization’s “control group” to three categories of individuals that either (1) supervise, direct, or regularly consult with the organization’s attorney concerning a represented matter; (2) have authority to obligate the organization with respect to a represented matter; or (3) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.[7]  Additionally, the employee must still be employed by the organization.[8]

The employees of an organization who use to fit into the definition of “control group,” e.g. officers, directors, and managers, will most likely always fit into of these new three categories, particularly the second or third, based on their inherent authority and the possible imputation of their acts or omissions to the organization.[9]  But, depending on the facts and circumstances of a claim before the Commission, other employees may or may not fit into one of these categories.[10]

Going back to the above example, say another employee, Employee C, who has no managerial duties witnessed the accident where Employee A was injured.  Employee C would most likely not fit into one of the rule’s three categories, so Attorney A would most likely be able to have ex parte communications with Employee C.[11]

However, say a third employee, Employee D, who also has no managerial duties caused in the course of his duties the accident that injured Employee A.  Employee D could possibly fit into the third category of the rule since his act may be imputed to Organization B for civil liability, so Attorney A would likely have to go through Organization B’s attorney to communicate with Employee D.[12]

While the updated comment to the rule provides help in determining whether an attorney is prohibited from ex parte communications with an employee, the analysis to reach this determination can still be tough.  In going through this analysis, there are two questions that can help: (1) does this employee have access and knowledge of privileged communications between the organization and the organization’s attorney that might be revealed in an ex parte communication; and (2) can the statements of this employee in an ex parte communication bind the organization to certain actions regarding a claim before the Commission?  If the answer is yes to either one, the employee is likely one that an attorney prohibited from having ex parte communications.

So what does it mean if an attorney can have an ex parte communication with a particular employee?  In dealing with this issue under the previous version of the comment to the rule, the Commission stated that the organization and its attorneys had to turn over the names, addresses, telephone numbers, and dates of employment to the employee and his attorney that filed a claim so that the employee’s attorney could talk with each of those employees without the presence or permission of the organization’s attorney.[13]  However, in a later case, the Commission ruled that an employer had to turn over this information with respect to employees that worked in close physical proximity and time to the employee that filed a claim.[14]

Therefore, if an employer organization is facing a claim from an employee and is asked to provide contact information from potential witnesses as part of discovery, it is essential to do an analysis under the rule to see whether the organization has to turn over certain employee-witness information.  The employee-claimant’s attorney might not be able to speak with certain employee-witnesses without the presence or permission of the organization’s attorney.

[1] Va. Rule of Professional Conduct 4.2.
[2] See generally Va. Rules of Professional Conduct.
[3] Comment 7 of Va. Rule of Professional Conduct.
[4] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006) (citing the Note to Rule 4.2 that dealt with represented organizations).
[5] See id.
[6] See Va. Rule of Professional Conduct 4.2.
[7] Comment 7 of Va. Rule of Professional Conduct 4.2.
[8] Id.
[9] See id.
[10] See id.
[11] See id.
[12] See id.
[13] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006).
[14] See Lynch v. VC Health Sys. Auth., VWC File No. VA000-0017-7807 (Sept. 30, 2010).