OPINION 461
October 1988

Question

Does the Texas Code of Professional Responsibility prohibit the plaintiff's attorney from questioning present employees of a corporate defendant concerning matters within the scope of their employment that are the subject of the pending litigation?

Factual Background

The plaintiff brought suit in a state court in Texas against a defendant corporation, seeking damages for personal injury alleged to have been caused by negligent acts committed by employees of the defendant in the course and scope of their employment. No individual employee was named as a defendant.

After the defendant appeared and answered through its attorney, the plaintiff's attorney, personally or through his employees or agents, contacted present employees of the defendant to question them concerning matters within the course and scope of their employment which are the subject of the suit.

Discussion

Answer to the question presented is governed by DR 7-104, the pertinent portion of which reads as follows:

"DR 7-104. Communicating With One of Adverse Interest. (A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

Opinion 17 (December, 1948) held that Canon 9 then in effect did not preclude an attorney from interviewing a potential witness, other than a party to the suit, even though the witness may be an employee of a party to the suit, if the attorney makes a full disclosure of his connection with the litigation and explains the purpose of the interview. That opinion was qualified, however, by Opinion 342 (March, 1968) with the following modification:

    1. If the employee being interviewed is the person for whose acts or omissions the defendant is sought to be held liable, such employee should be considered as a party and he should not be interviewed without the consent of the attorney for the corporate defendant by whom he was employed.
    2. If the employee being interviewed is an officer or managing employee with authority to bind the corporate defendant, he should likewise be considered a party within the meaning of Canon 9.

We do not read prior Opinion 342 as prohibiting communication by a lawyer with the employee of a corporate defendant who is represented by an attorney if, and only if, both conditions set out in Opinion 342 are met. If either condition exists, the prohibition applies.

Conclusion

During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with the employee of an adverse party without consent of opposing counsel if (1) the employee is an officer or managing employee or (2) the conduct (act or omission) of the employee is the basis of the litigation. If the employee with whom communication is made is not an officer or managing employee of the corporate defendant and the conduct by the employee is not the subject of the controversy, he may be interviewed by an attorney or a party opposing the corporation provided the attorney makes a full disclosure of his connection with the suit and explains the purpose of the interview.