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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 has a case against B in which A would be a witness against B. (1) Does the office have a conflict? (2) May the office prepare the witnesses for the trials in which they are not defendants without their criminal defense counsel present?

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

[Rule 4 -- 4.2]

Op.Pty.-21

INFORMAL OPINION 940124

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

ANSWER: Contacting B directly would violate Rule 4-4.2.Attorney may contact B through its counsel. Attorney may contact C 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 the recipient's mental state for radio and television advertising as is required of targeted direct mail advertising?

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

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

ANSWER 2: Regardless of whom Attorney represents, Rule 4-4.2 prohibits direct contact with a represented person regarding the 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. May Attorney or Attorney's investigator question witnesses who have been 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 may question the witnesses without involving the prosecutor. Attorney should make sure the witnesses who are not Attorney's clients understand that Attorney does not represent the witness and that the witness should seek the advice of independent counsel for any legal questions.

[Rule 4 -- 4.2]

Op.Pty.-24

INFORMAL OPINION 940194

QUESTION: Attorney proposes to contact FORMER employees of the opposing party without contacting opposing counsel. Would this 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" of whether the employee is a current or former employee is not the test. The test is set out in the second paragraph of the comments to the rule.

[Rule 4 -- 4.2]

Op.Pty.-25

INFORMAL OPINION 940199

QUESTION: Attorney represents plaintiff in a personal injury case. The insurance company for the defendant has also brought a declaratory judgment action against its insured and Attorney's client seeking a declaration that the defendant was not insured. The defendant is not represented in the declaratory judgment action.The defendant is represented in the underlying tort action. May Attorney contact the defendant directly regarding the issues involved in the declaratory judgment action?

ANSWER: Yes. Once the defendant does obtain counsel in the declaratory judgment case, Rule 4-4.2 will apply although the new 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 for sending a prejudgment interest demand letter pursuant to section 408.040, RSMo. May the letter be sent directly to the opposing party even when that party is represented by counsel. Attorney believes that this is what the statute requires.

ANSWER: In light of Attorney's uncertainty of the interpretation of the statute, Attorney should contact opposing counsel and request opposing counsel to accept notice on behalf of the defendant. If opposing counsel refuses, Attorney may proceed to serve the defendant directly. If opposing counsel consents to receiving the notice on behalf of the defendant, Attorney may not directly send the notice to the defendant.

[Rule 4 -- 4.2]

Op.Pty.-27

INFORMAL OPINION 950014

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

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

[Rule 4 -- 4.2]

Op.Pty.-28

INFORMAL OPINION 950038

QUESTION: May Attorney hire an investigator to do pretrial investigation who will make ex parte contact with witnesses with whom Attorney could not make ex parte contact under Rule 4-4.2? ANSWER: No. To the extent that the rules prohibit an attorney from engaging in particular conduct, Rules 4-5.3 and 4-8.4(a)prohibit an attorney from directing or permitting an agent to engage 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 with non-management former employees of the defendant company.

ANSWER: The comments to Rule 4-4.2 set out three categories of employees who may not be contacted on an ex parte basis.Because sufficient facts have not been provided and these categories involve legal issues in addition to ethical issues, no definite answer can be given.

[Rule 4 -- 4.2]

Op.Pty.-30

INFORMAL OPINION 950045

QUESTION: Attorney proposes placing an advertisement in the newspaper asking former non-supervisory employees of a corporate defendant to contact Attorney.

ANSWER: The analysis regarding ex parte contact with employees or former employees does not end with whether the employee is supervisory. The comment sets out three categories of employees and former employees with whom ex parte contact is prohibited. These categories also include employees who make admissions that will be binding on the employer or whose acts or omissions may be imputed to the employer. Rule 4-4.2 cannot be avoided 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 one of the defendants are also defendants in the case. Attorney represents the plaintiff. If the case against the former employees is dismissed, may Attorney subsequently discuss the case with these individuals without going through their respective counsel?

ANSWER: No, under Rule 4-4.2, Attorney would still need to go through their respective counsel in order to communicate with them regarding the case. If they have their own counsel, Attorney may go through that counsel rather than the counsel for the organization for which 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. Attorney and Attorney's spouse are represented by counsel. Attorney wishes to discuss the case and negotiate certain matters regarding the case with Attorney's spouse without the involvement of the spouse's attorney. May Attorney engage in ex parte communications with Attorney'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 interview of a former management employee of the opposing party. Attorney asks for clarification of Rule 4-4.2's application in situations involving former employees.

ANSWER: Under the present state of the law in Missouri,Attorney may not contact the witness described on an ex parte basis without violating Rule 4-4.2. The critical issue is the nature of the witness' employment at the time of the incident, not the witness'present employment. The Supreme Court of Missouri addressed the issue 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 set out in the comment to the Rule and stated: "The test focuses neither upon a bright line hierarchical structure nor a bright line temporal distinction regarding which employee shall be treated as a party,but instead sets out a functional approach designed to be sensitive to the practical considerations of the real world."

[Rule 4 -- 4.2]

Op.Pty.-34

INFORMAL OPINION 950114

QUESTION: Attorney represents a person engaged in litigation with a governmental entity. The entity is large and has a number of offices at different locations which operate relatively independently of each other. Attorney's questions all relate to contemplated ex parte communications.

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

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

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

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

Answer (1): Under Rule 4-4.2 Attorney may speak with non-management employees of the same office on an ex parte basis, only if those employees' acts or omissions cannot be imputed to the employer and they cannot make admissions that will be binding on the employer. This analysis is set forth in the second paragraph of the comment to the rule.

Answer (2): The answer is essentially the same as the answer to Question (1). Attorney may not speak to managerial employees of the governmental entity about this case regardless of whether they were employed at the same office. For non-managerial employees, 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 are current or former employees -- the analysis is the same.

Answer (4): Unless the government itself is a party to the action other than through one of its entities Attorney may contact employees of the government who are not employees or former employee 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 to opposing counsel and asks whether sending a copy of the letter to the opposing party would violate Rule 4-4.2. Attorney would not request contact from the opposing party and would not accept such contact. Attorney is concerned that opposing counsel will not convey the settlement offer to the opposing party.

ANSWER: The proposed communication would violate Rule 4-4.2.

[Rule 4 -- 4.2]

Op.Pty.-36

INFORMAL OPINION 950249

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

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

[Rule 4 -- 4.2]