2011-2.

• Court: Alaska

Alaska Alaska Ethics Opinion 2011. 2011-2. ALASKA BAR ASSOCIATIONETHICS OPINION NO. 2011-2Propriety of communication with an Employee of a corporate or Government entity by a lawyer Engaged in litigation against that entityQuestion Presented What constitutes "managerial responsibility" discussed in the Comment to ARPC 4.2 concerning communications with a represented person? Conclusion Employees of an organization who have sufficient authority to speak on behalf of the organization and thus legally bind the organization, are subject to the provisions of Rule 4.2. Other employees are not. Discussion Bar counsel has frequently received inquiries regarding when it is appropriate for an attorney to contact an employee of a corporation, governmental entity or other organization during the course of a lawsuit. The question implicates Alaska Rule of Professional Conduct 4.2, which provides:

Communication with Person Represented by Counsel.

In representing a client, a lawyer shall not communicate about the subject of the representation with a party or person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

The problem lies in drawing a line between those employees of an organization that are be covered by the rule, and thus cannot be contacted, and those employees who are not covered, and are thus accessible to opposing counsel. Too strict an interpretation will make reasonable investigation of claims unnecessarily difficult, while too lenient an interpretation runs the risk of interfering with the attorney client relationship between the organization and its attorneys, or destroying the right of the organization to the protections of the attorney client privilege.(fn1) For example, an attorney would be prohibited from interviewing the president of a company regarding an automobile accident, because the president of the company would have authority to bind the company with his or her statements. But is the attorney also prohibited from interviewing the employee who was actually driving the automobile involved in the accident? The Commentary to the Alaska Rules of Professional Conduct addresses this issue:

In the case of a represented organization, this Rule prohibits communications by a lawyer concerning the

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