CONTACT OF OPPOSING

PARTIES

1996 SUPPLEMENT

Op.Pty.-20

INFORMAL OPINION 940114

QUESTION: Attorney is a prosecuting attorney. The prosecutor's office has a case against A in which B is the victim. It also hasa case against B in which A would be a witness against B. (1) Doesthe office have a conflict? (2) May the office prepare the witnessesfor the trials in which they are not defendants without their criminaldefense counsel present?

ANSWER: (1) No. (2) Yes, however it would be advisable togive counsel an opportunity to be present. Each session should bestarted by cautioning everyone that the other case should not bediscussed.

[Rule 4 -- 4.2]

Op.Pty.-21

INFORMAL OPINION 940124

QUESTION: Attorney represents a client who is in litigationwith corporation A. Corporation B owns 100% of the stock of A.Corporation C is a shareholder of B. May Attorney contact B or Cdirectly, without going through the attorney for A, B or C to discusssettlement with A?

ANSWER: Contacting B directly would violate Rule 4-4.2.Attorney may contact B through its counsel. Attorney may contactC directly unless it is a dominant or controlling shareholder of B.

[Rule 4 -- 4.2]

Op.Pty.-22

INFORMAL OPINION 940128

QUESTION 1: Must Attorney make a determination of therecipient's mental state for radio and television advertising as isrequired of targeted direct mail advertising?

QUESTION 2: Attorney represents an insurance company.May Attorney directly contact the opposing party to negotiatesettlement?

ANSWER 1: The determination of mental state is required byRule 4-7.3(c) for targeted mailings under Rule 4-7.3(a) and in personsolicitation (when in person solicitation is permitted by Rule 4-7.3(b)).General advertising is governed by Rule 7.2 which does not containthis requirement.

ANSWER 2: Regardless of whom Attorney represents, Rule4-4.2 prohibits direct contact with a represented person regardingthe subject of the representation.

[Rule 4 -- 7.2; 7.3; 4.2]

Op.Pty.-23

INFORMAL OPINION 940167

QUESTION: Attorney is a criminal defense attorney. MayAttorney or Attorney's investigator question witnesses who havebeen endorsed by the prosecutor without involving the prosecutor?If yes, what warnings should be given to the witness?

ANSWER: Yes, Attorney or Attorney's investigator mayquestion the witnesses without involving the prosecutor. Attorneyshould make sure the witnesses who are not Attorney's clientsunderstand that Attorney does not represent the witness and thatthe witness should seek the advice of independent counsel for anylegal questions.

[Rule 4 -- 4.2]

Op.Pty.-24

INFORMAL OPINION 940194

QUESTION: Attorney proposes to contact FORMER employeesof the opposing party without contacting opposing counsel. Wouldthis violate Rule 4-4.2?

ANSWER: Under Rule 4-4.2, and State ex rel. Pitts v. Roberts,857 S.W.2d 200, 202 (Mo. banc 1993), the "temporal distinction" ofwhether the employee is a current or former employee is not thetest. The test is set out in the second paragraph of the comments tothe rule.

[Rule 4 -- 4.2]

Op.Pty.-25

INFORMAL OPINION 940199

QUESTION: Attorney represents plaintiff in a personal injurycase. The insurance company for the defendant has also broughta declaratory judgment action against its insured and Attorney'sclient seeking a declaration that the defendant was not insured. Thedefendant is not represented in the declaratory judgment action.The defendant is represented in the underlying tort action. MayAttorney contact the defendant directly regarding the issuesinvolved in the declaratory judgment action?

ANSWER: Yes. Once the defendant does obtain counsel inthe declaratory judgment case, Rule 4-4.2 will apply although thenew counsel may not have entered an appearance yet.

[Rule 4 -- 4.2]

Op.Pty.-26

INFORMAL OPINION 950012

QUESTION: Attorney asks about the proper procedure forsending a prejudgment interest demand letter pursuant to section408.040, RSMo. May the letter be sent directly to the opposing partyeven when that party is represented by counsel. Attorney believesthat this is what the statute requires.

ANSWER: In light of Attorney's uncertainty of the interpretation of the statute, Attorney should contact opposing counsel andrequest opposing counsel to accept notice on behalf of thedefendant. If opposing counsel refuses, Attorney may proceed toserve the defendant directly. If opposing counsel consents toreceiving the notice on behalf of the defendant, Attorney may notdirectly send the notice to the defendant.

[Rule 4 -- 4.2]

Op.Pty.-27

INFORMAL OPINION 950014

QUESTION: May Attorney make ex parte contact with formeremployees of the opposing party, including employees whose actsor omissions may be imputed to the defendant?

ANSWER: No. It is our position that the Missouri Supreme Courtaddressed the current versus former employee issue in State ex rel.Pitts v. Roberts, 857 S.W.2d 202 (Mo. banc 1993). The Court indicatedthat it was adopting the comments under Rule 4-4.2. The Courtobserved: "This test focuses neither upon a bright line hierarchicalstructure nor a bright line temporal distinction regarding whichemployee shall be treated as a party, but instead sets out afunctional approach designed to be sensitive to the practicalconsiderations of the real world." From this statement, we understand that the analysis is to be one of function and that the questionof whether the employee is a current or former employee is not adeterminative factor in the analysis.

[Rule 4 -- 4.2]

Op.Pty.-28

INFORMAL OPINION 950038

QUESTION: May Attorney hire an investigator to do pretrialinvestigation who will make ex parte contact with witnesses withwhom Attorney could not make ex parte contact under Rule 4-4.2? ANSWER: No. To the extent that the rules prohibit an attorneyfrom engaging in particular conduct, Rules 4-5.3 and 4-8.4(a)prohibit an attorney from directing or permitting an agent toengage in that conduct.

[Rule 4 -- 4.2; 5.3; 8.4(a)]

Op.Pty.-29

INFORMAL OPINION 950042

QUESTION: Attorney wishes to make ex parte contact withnon-management former employees of the defendant company.

ANSWER: The comments to Rule 4-4.2 set out three categoriesof employees who may not be contacted on an ex parte basis.Because sufficient facts have not been provided and thesecategories involve legal issues in addition to ethical issues, nodefinite answer can be given.

[Rule 4 -- 4.2]

Op.Pty.-30

INFORMAL OPINION 950045

QUESTION: Attorney proposes placing an advertisement inthe newspaper asking former non-supervisory employees of acorporate defendant to contact Attorney.

ANSWER: The analysis regarding ex parte contact withemployees or former employees does not end with whether theemployee is supervisory. The comment sets out three categories ofemployees and former employees with whom ex parte contact isprohibited. These categories also include employees who makeadmissions that will be binding on the employer or whose acts oromissions may be imputed to the employer. Rule 4-4.2 cannot beavoided even if the employee initiates the contact.

[Rule 4 -- 4.2]

Op.Pty.-31

INFORMAL OPINION 950095

QUESTION: Two individuals who are former employees of oneof the defendants are also defendants in the case. Attorneyrepresents the plaintiff. If the case against the former employees isdismissed, may Attorney subsequently discuss the case with theseindividuals without going through their respective counsel?

ANSWER: No, under Rule 4-4.2, Attorney would still need to gothrough their respective counsel in order to communicate with themregarding the case. If they have their own counsel, Attorney may gothrough that counsel rather than the counsel for the organization forwhich they previously worked. If their counsel agrees to the contact,such contact would not violate the rule.

[Rule 4 -- 4.2]

Op.Pty.-32

INFORMAL OPINION 950101

QUESTION: Attorney is a party to a dissolution case. Attorneyand Attorney's spouse are represented by counsel. Attorney wishesto discuss the case and negotiate certain matters regarding thecase with Attorney's spouse without the involvement of the spouse'sattorney. May Attorney engage in ex parte communications withAttorney's spouse regarding the case without violating Rule 4-4.2?

ANSWER: Yes.

[Rule 4 -- 4.2]

Op.Pty.-33

INFORMAL OPINION 950105

QUESTION: Attorney wishes to conduct an ex parte interviewof a former management employee of the opposing party. Attorneyasks for clarification of Rule 4-4.2's application in situations involvingformer employees.

ANSWER: Under the present state of the law in Missouri,Attorney may not contact the witness described on an ex partebasis without violating Rule 4-4.2. The critical issue is the nature of thewitness' employment at the time of the incident, not the witness'present employment. The Supreme Court of Missouri addressed theissue of former employees in State ex rel. Pitts v. Roberts, 857 S.W.2d200 (Mo. banc 1993). At page 202, the Court adopted the test setout in the comment to the Rule and stated: "The test focuses neitherupon a bright line hierarchical structure nor a bright line temporaldistinction regarding which employee shall be treated as a party,but instead sets out a functional approach designed to be sensitiveto the practical considerations of the real world."

[Rule 4 -- 4.2]

Op.Pty.-34

INFORMAL OPINION 950114

QUESTION: Attorney represents a person engaged inlitigation with a governmental entity. The entity is large and has anumber of offices at different locations which operate relativelyindependently of each other. Attorney's questions all relate tocontemplated ex parte communications.

Question (1): May Attorney speak with non-managementemployees of the same office who have knowledge regarding thematter?

Question (2): May Attorney speak with employees at otheroffices regarding the matter?

Question (3): May Attorney speak with former managerial ornon-managerial employees of the same office?

Question (4): May Attorney discuss the case with otheremployees of the same government but who are not employees orformer employees of the entity that is a party to the case?

Answer (1): Under Rule 4-4.2 Attorney may speak withnon-management employees of the same office on an ex partebasis, only if those employees' acts or omissions cannot be imputedto the employer and they cannot make admissions that will bebinding on the employer. This analysis is set forth in the secondparagraph of the comment to the rule.

Answer (2): The answer is essentially the same as the answerto Question (1). Attorney may not speak to managerial employeesof the governmental entity about this case regardless of whetherthey were employed at the same office. For non-managerialemployees, the analysis is the same as described in Question (1).

Answer (3): Under State ex rel. Pitts v. Roberts, 857 S.W.2d 200,202 (Mo. banc 1993), it does not matter whether the employees arecurrent or former employees -- the analysis is the same.

Answer (4): Unless the government itself is a party to theaction other than through one of its entities Attorney may contactemployees of the government who are not employees or formeremployee of the particular entity on an ex parte basis.

[Rule 4 -- 4.2]

Op.Pty.-35

INFORMAL OPINION 950161

QUESTION: Attorney plans to send a settlement offer toopposing counsel and asks whether sending a copy of the letter tothe opposing party would violate Rule 4-4.2. Attorney would notrequest contact from the opposing party and would not acceptsuch contact. Attorney is concerned that opposing counsel will notconvey the settlement offer to the opposing party.

ANSWER: The proposed communication would violate Rule4-4.2.

[Rule 4 -- 4.2]

Op.Pty.-36

INFORMAL OPINION 950249

QUESTION: Attorney represents the plaintiff. May Attorneysend a copy of a settlement offer directly to the insured if theinsured is only represented by an insurance adjuster at the time?May Attorney send a copy of a settlement offer directly to theinsured if the insured is represented by an insurance adjuster and anattorney hired by the insurance company and the insured is likely tohave liability beyond the insurance limits?

ANSWER: Attorney may send a copy of a settlement offerdirectly to the insured if Attorney does not know or have reason toknow that the insured is represented by counsel, regardless of theinvolvement of an adjuster. If the insured is represented by anyattorney, including one who is hired by the insurance company,Rule 4-4.2 applies and Attorney may not communicate directly withthe insured.

[Rule 4 -- 4.2]