Contacting Employees of an Adverse Corporate Party: A ...

353 Contacting Employees ofan Adverse Corporate Party: A Plaintiff s Attorney s ViewEllen J. Messing and James S. Weliky*The Model Rules of Professional Conduct, and their predecessorDisciplinary Rules, include prohibitions on direct ex parte contact be-tween lawyers and those represented by other lawyers in the text of Model Rules of Professional Conduct Rule reads:In representing a client, a lawyer shall not communicate about thesubject of the representation with a person the lawyer knows to berepresented by another lawyer in the matter, unless the lawyer hasthe consent of the other lawyer or is authorized to do so by law or acourt feature of these rules that has proven enormously controversial overthe years, and one with great practical impact on plaintiffs employ-ment lawyers, is the extent to which the rule prohibits ex parte contactbetween lawyers for individual employee plaintiffs, on the one hand,and on the other hand, potential witnesses employed by corporationsor other organizations that are in a posture Adverse to those lawyers naturally seek the broadest possible access to suchwitnesses, while management-side lawyers ordinarily seek to limitaccess absent their express consent.

353 Contacting Employees of an Adverse Corporate Party: A Plaintiff’s Attorney’s View Ellen J. Messing and James S. Weliky* The Model Rules of Professional Conduct, and their predecessor

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