May 18, 2011 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by State Bar’s ethics counsel Timothy Pierce, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
I represent an individual suing a company in a products liability matter. Discovery is under way. I believe that a current assembly line worker may have some knowledge about the company’s claim that it discontinued making some parts seven years ago. The worker is simply a low-level employee who may have some relevant factual information about the matter. The lawyers for the company have claimed that they represent all employees of the company. Can I send my investigator out to interview this worker away from the job site?
The lawyer may contact this worker without the consent of opposing counsel. SCR 20:4.2 only prohibits contact with employees who direct or consult with the organization’s lawyer about the matter, who have authority to bind the organization with respect to the matter, or whose acts or omissions may be imputed to the organization in the matter. This employee is simply a fact witness and may be contacted without consent of the organization’s lawyer.
References: SCR 20:4.2, SCR 20:4.3, SCR 20:4.4, SCR 20:1.13; State Bar of Wisconsin Formal Opinion E-07-01; and ABA Formal Ethics Opinion 95-396.
For more information, visit the Ethics webpage on WisBar.