Contacting a Company's Employees: Washington's Rules

Most companies, it is safe to say, assume that the Courts do not allow lawyers who have sued a company, are helping a client negotiate a contract with a company, or are somehow adverse to a company to call up company employees and talk with them without, at least, going through the company’s lawyer. While that is a reasonable assumption, it is not the law in Washington state.

Each state has its own rules of ethics for lawyers. In Washington, those rules are set out by case law and the Washington Rules of Professional Conduct, which are modeled on, though not identical to, the American Bar Association’s Model Rules of Professional Conduct. W.D. Local Civil Rule 83.3(a)(2) and E.D. Local Rule 83.3(a) require Washington’s federal courts to follow these rules as well.

1. Individuals represented by a Lawyer

A starting point is Washington Rule of Professional Conduct 4.2, which applies to persons represented by an attorney. It reads:

"In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."

This Rule prohibits lawyers who have filed suit against a hypothetical John Doe from calling up John and interviewing or negotiating with him when John is represented by a lawyer. The adverse lawyer (and, for that matter, any lawyer other than John's lawyer) must go through the John’s lawyer because, the reasoning goes, that prevents the adverse lawyer from taking advantage of John. This means that the adverse lawyer is not permitted to interview John about what the Rule calls the subject of the representation, which is described in the next section, when that person is represented by a lawyer – whether or not a lawsuit is expected.

The Washington Court of Appeals ruled that absolute, positive knowledge that our John Doe is represented by an attorney is not necessary to kick off this rule. Instead, if there is a reasonable basis for the adverse lawyer to believe that the person may be represented, the adverse lawyer has a duty to determine whether the person is in fact represented before talking with the person. Engstrom v. Goodman, 166 Wash.App 905, 914, 271 P.3d 959, 964 (2012). To similar effect is WSBA Rules of Professional Conduct Committee Advisory Opinion 2132.

Washington courts apply this no contact rule very strictly, going so far as to prohibit an attorney who represented himself in a dispute from contacting the opposing party – even though non-lawyers are generally not barred from contacting one another about a dispute, contract, sale, or most anything else. In re Disciplinary Proceeding Against Haley, 156 Wash.2d 324, 126 P.3d 1262 (2006).

2. The subject of the representation

Even when the person is represented by a lawyer, direct contact by the adverse lawyer with the person is prohibited only for “the subject of the representation.” So if for a client a lawyer is negotiating contract terms with someone, that lawyer is allowed to call and talk with that person about what he or she knows about an unrelated auto accident or about the sale of an unrelated business.

3. Companies represented by a Lawyer

  • a. Current employees of a company

Rule 4.2 is also the foundation for whether an adverse lawyer can contact employees of companies and organizations. Just like for individuals, the adverse lawyer may be barred from calling a company's employees if the company is represented by an attorney with respect to a particular issue and, if contact is barred, it is barred only on the subject of the representation.

Even if the company is represented by a lawyer and even if a call by the adverse lawyer is about the subject of the representation, only certain employees are protected from calls and interviews by the adverse lawyer. For companies, the Washington Supreme Court in Wright v. Group Health Hosp., 103 Wash.2d. 192, 691 P.2d 564 (1984) ruled:

"We hold the best interpretation of "party" in litigation involving corporations is only those employees who have the legal authority to "bind" the corporation in a legal evidentiary sense, i.e. those employees who have "speaking authority" for the corporation."

Wright, 103 Wash. 2d. at 200, 691 P.2d at 569. The Court continued:

"We hold current . . . employees should be considered "parties" for the purposes of the disciplinary rule if, under applicable Washington law, they have managing authority sufficient to give them the right to speak for, and bind, the corporation."

Wright, 103 Wash. 2d. at 201, 691 P.2d at 569. Comments 7 and 10 to the current version of Rule 4.2 confirm that Wright governs. Also see WSBA Rules of Professional Conduct Committee Advisory Opinions 2150 and 2112.

What this means is that many employees, and perhaps almost all for a large company, can be interviewed by the adverse lawyer without going through the company’s lawyer. The only employees who cannot be contacted are those who have “managing authority sufficient to give them the right to speak for, and bind, the corporation.”

Take, for example, the assembly line employee who put together the particular part that is claimed to have caused an accident. Even though the employee assembled the particular part and knows everything about the design of that part, unless that employee had “managing authority sufficient to give [him or her] ... the right to speak for, and bind the corporation,” contact by the adverse lawyer with that employee is permitted. This means that the adverse lawyer can interview the assembly line employee without going through the company’s lawyer – even if the assembly line employee is the person who misassembled the part. This conclusion is just what the Supreme Court intends:

"We find no reason to distinguish between employees who in fact witnessed an event and those whose act or omission caused the event leading to the action. It is not the purpose of the rule to protect a corporate party from the revelation of prejudicial facts."

Wright, 103 Wash. 2d at 200, 691 P.2d at 569.

The surprising result, then, is that many employees (and often the employee who is really the center of the dispute) can be contacted by the adverse lawyer without going through the company’s lawyer.

  • b. Former employees of a company

Former employees are fair game with few restrictions. The Supreme Court ruled that the restrictions do not apply to former employees because they “cannot possibly speak for the corporation.” Wright, 103 Wash. 2d at 201, 691 P.2d at 569. Comment 7 to Rule 4.2, which provides guidance on how to interpret the Rule, similarly states “[c]onsent of the organization’s lawyer is not required for communication with a former constituent.”

So, for our assembly line employee, while the current Vice President of Engineering who has the authority to speak for the company on proper assembly or design of a part cannot be interviewed without going through the company’s lawyer, once that Vice President becomes a former employee there is no general restriction. It does not matter that the former Vice President was the person who approved the design, decided to go forward with the design despite misgivings about it, or was authorized by the Company to and did certify that the part design me met government safety standards. What matters is that the Vice President is a former employee.

  • c. Some restrictions

Even when otherwise allowed, direct contact by the adverse lawyer with current or former employees has restrictions.

The adverse lawyer is not permitted to ask about things protected by the attorney-client privilege, which, generally speaking, includes discussions that the employee had with the company’s lawyer.

The adverse lawyer also cannot ask about work product actions and communications, which, again generally speaking, are things the employee or the company did in anticipation of a lawsuit or dispute or as the result of either.

4. What’s a Company to Do

What a company’s lawyer cannot do is stated this way by the Supreme Court: “a corporate party, or its counsel, may not prohibit its nonspeaking/managing agent employees from meeting with adverse counsel.” Wright, 103 Wash. 2d at 203, 691 P.2d at 570 (emphasis by the Court). Except for those few employees who have this sort of “speaking authority,” then, the company’s lawyer may not tell employees or advise company management to tell employees that they are not allowed to meet or talk with the adverse lawyer.

For the lawyer who represents the company, the furthest he or she can go in Washington is to request, but not require, that any calls from the adverse lawyer be referred to, for example, the CEO, the HR manager, or the company’s lawyer. The company’s lawyer may not get around this rule by telling the company’s non-lawyer CEO or HR department to instruct all employees not to talk with the adverse lawyer. All that may be done is to make a request. The request must be a request, not a message that is delivered in a way or is understood to be an instruction or demand.

The Supreme Court probably goes too far, however, in prohibiting “a corporate party” from giving an instruction to its employees. Rule 4.2 governs what lawyers, not non-lawyers, may do. So if a company CEO is not a lawyer and not relying on the company lawyer’s advice, the CEO probably should be permitted to instruct employees not to speak with an adverse lawyer without the CEO’s permission. As written, though, the Supreme Court’s ruling restricts even what a non-lawyer CEO can do, creating a risk of court imposed penalties.