March, 1968

COMMUNICATIONS WITH ADVERSE PARTY—INTERVIEWING WITNESSES AND OBTAINING STATEMENTS— It is not unethical for an attorney to interview and take statements from employees of an adverse party without consent of opposing counsel provided a fulI disclosure is made and provided further that the employee is not an officer or managing employee of the party and is not the person whose conduct gives rise to the controversy.

Canon 9ABA Canon 9.


Plaintiff files a damage suit against defendant corporation. Thereafter plaintiff's attorney, or his investigator, inter-views and obtains a statement from defendant's employee without consent of defendant or defendant's counsel. Is such conduct a violation of Canon 9?


Both Texas Canon 9 and ABA Canon 9 provide that an attorney should not in any way communicate upon the subject of controversy with a party represented by counsel and it would, of course, be unethical for an attorney, either personally or through his investigators, to interview and obtain a statement from the adverse party without consent of his counsel. Opinion 117 (September, 1955). These Canons, however, do not prohibit communications with employees of an adverse party and this Committee held, in Opinion 17 (December, 1948), that an attorney may interview an employee of a party provided the attorney makes a full disclosure of his connection with the suit and explains the purpose of the interview. To the same effect is ABA Opinion 117 (August, 1934) We approve those opinions with the following modifications (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 within the meaning of Canon 9 (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. See Drinker, Legal Ethics) pages 85 and 201.

Two members of the Committee are of the opinion that since a corporation can act only through its officers and employees, an interview with any employee would be an interview with the party defendant and therefore prohibited by Canon 9 unless consent of opposing counsel is obtained. (6-2.)