Bar Counsel Notes: Communicating with adverse party.

When, if ever, may a lawyer for one party contact employees/directors/former employees of a represented, adverse party?

There are two significant federal cases that address this issue: Frank v. L.L. Bean Inc., 377 F.Supp.2d 233; and Crowley v. L.L. Bean Inc. 143 F.Supp.2d 38. The Maine Bar Rule which is implicated and relevant under these facts is 3.6(f). Typically, if an employee or member of a Board of Directors has current decision-making authority or is one who may ask and receive advice from the entity's attorney, opposing counsel should not initiate contact with that person unless authorized to do so by the entity's attorney. See also Advisory">">Advisory Opinion #94.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.