2005-80.

• Court: Oregon

Oregon Ethics Opinions 2005. 2005-80. FORMAL OPINION NO. 2005-80Communicating with Represented Persons:Current and Former Employees of Entities Representedby Counsel, Lawyer-Client Privilege Facts: Plaintiff's Lawyer represents Plaintiff in litigation against Corporate Defendant. Corporate Defendant is represented by Defense Lawyer. Current Employee is a current employee of Corporate Defendant. Former Employee is a former employee of Corporate Defendant. Current Employee and Former Employee are not separately represented by Defense Lawyer or by other counsel. Questions: 1. May Plaintiff's Lawyer talk to Current Employee about the facts of the underlying dispute without the permission of Defense Lawyer? 2. May Plaintiff's Lawyer talk to Former Employee about the facts of the underlying dispute without the permission of Defense Lawyer? 3. May Plaintiff's Lawyer discuss with Current Employee or Former Employee communications between Current Employee or Former Employee on the one hand and Defense Lawyer on the other? Conclusions: 1. See discussion. 2. Yes. 3. No, qualified. Discussion: Oregon RPC 4.2 provides: In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless:

(a) the lawyer has the prior consent of a lawyer representing such other person;

(b) the lawyer is authorized by law or by court order to do so; or

(c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer.

Whether Current Employee is deemed represented for purposes of Oregon RPC 4.2 depends on the position held by Current Employee within Corporate Defendant and the relationship of Current Employee to the matters at issue in the litigation. Different jurisdictions have adopted somewhat different, albeit overlapping, approaches to the problem of which employees or constituents of an organization are entitled to the protection afforded by Oregon RPC 4.2.(fn1) In the absence of express authority in Oregon,(fn2) we believe that the correct approach is as follows:

(1) If Current Employee is part of corporate management or a corporate officer or director, then...