Friday, May 6, 2022
The Georgia Supreme Court has approved as modified an ethics opinion on the application of Rule 4.2 to former organization employees
Whether a lawyer may properly communicate with a former employee of a represented organization to acquire relevant information, without obtaining the consent of the organization’s counsel.
Generally, a lawyer may communicate with a former employee of an organization that is represented by counsel without obtaining that counsel’s consent, provided that the lawyer fully discloses to the former employee, before initiating the communication, the following information: (1) the identity of the lawyer’s client and the nature of that client’s interest in relation to the organization (i.e., the former employer); and (2) the reason for the communication and the essence of the information sought. After making these disclosures, the lawyer must also obtain the former employee’s consent to the communication.
Furthermore, in communicating with the former employee, the lawyer must not utilize methods of obtaining information that would violate the legal rights of the former employee or the represented organization, such as inquiring into information that may be protected by the attorney-client privilege or other evidentiary privilege.
Finally, if the lawyer knows or at any point determines that the former employee is individually represented by counsel in the matter, the lawyer may not communicate with the former employee, unless authorized by law or court order to do so, without obtaining the former employee’s counsel’s consent.