QUESTION: Attorney was hired to get Client's sick leave benefits from former employer and to apply them retroactively to Client's retirement. Client was advised that the retainer would not cover filing fees. Attorney offered to prepare a petition and first set of discovery, after which Client would have 60 days to decide if more legal assistance was needed. Attorney immediately prepared the documents and sent them to Client. When Client later inquired about the status of the case, Attorney advised Client of the situation over the phone and again in writing. Client replied with a letter stating that Attorney was to file the petition. Attorney informed Client that Attorney's office would not be further involved. Client responded by threatening to file a bar complaint against Attorney if Client's retainer fee was not refunded. Attorney feels uncomfortable with further direct contact with Client and solicits advice and guidance.

ANSWER: The Rules of Professional Conduct do not prohibit Attorney from having further direct contact with Client, based on the information presented. Even if Client files a fee dispute or bar complaint, Attorney is not prohibited from direct contact unless Client is represented by counsel in that matter. In that event, any contact would have to be through Client's counsel or with the counsel's consent, under Rule 4-4.2. Under 4-4.2, Client would not be considered to be represented by disciplinary counsel in a bar complaint, nor would Client be considered to be represented by the fee dispute program if Client filed a fee dispute. There are no "nonrefundable" fees in Missouri. The only fee where a client is not entitled to a refund is a fee that has been earned by the attorney. In determining whether the fee has been earned, all factors set forth in Rule 4-1.5(a) may be considered.

QUESTION: Attorney is counsel for parties in several lawsuits and desires to contact former employees of adverse corporate defendants. Two cases are in federal court and one is in state court. The employees were mid-level managerial employees or territorial representatives, but Attorney does not believe any of them would be directly involved in the defense of any of the lawsuits. May Attorney contact these former employees?

ANSWER: For cases already filed in federal court, Attorney may follow the interpretations of Rule 4-4.2, officially expressed by that federal court or superior courts in that circuit. The Missouri federal courts have taken the position that it is permissible to contact former employees. If the case is not yet filed in federal court, but anticipated to be filed in federal court, the state court interpretation applies until it is actually filed in federal court. For a case in state court, Attorney may not contact former employees if they fall within the three categories listed in the second paragraph of the comment to Rule 4-4.2. The category most likely to apply to Attorney's case is "persons having managerial responsibility on behalf of the organization." If the employee had management responsibility, Attorney may not make direct contact.

QUESTION: Can attorneys for custodial parents have contact with children who have had a guardian ad litem appointed for them?

ANSWER: Although a GAL is not always the attorney for the child, generally an attorney who is a GAL is treated as functioning as an attorney. Without facts that would indicate otherwise, the initial approach would be that the attorney for a party should not communicate with the child about the matter. The key word, in relation to Rule 4-4.2, is "communicate." Rule 4-4.2 does not prohibit an attorney from being in the presence of a represented party; it prohibits communication about the subject of the representation. The attorney for either parent could be in the presence of the child who has a guardian ad litem but should not communicate with the child regarding the matter. This may mean that the child would need to be kept outside the hearing of the conversation between the attorney and parent.

QUESTION: Client brought a suit against a former employer. The Petition alleges that the former employer defamed Client in stating that Client committed "gross misconduct" in Client's employment. Defendant asserts that the gross misconduct occurred in a couple of conversations. During these conversations, there were a couple of employees present who may have observed the conversations. These employees are not management personnel. These employees are still employed by Defendant. These employees were not part of the conversation and they did not complain to management about Client's conduct. They were also not involved in the investigation that led to the termination of Client. Attorney would like to contact these employees and question them about what they witnessed regarding the conversations in question. Should the hourly employees be treated as the "party" for purposes of Rule 4-4.2? ANSWER: Based upon the information Attorney has provided, it is permissible for Attorney to make direct contact with these employees, without violating Rule 4-4.2. Different or additional information could change this opinion.

QUESTION: Attorney represents Plaintiff in a bailment action. Attorney would like to contact some of Defendant´s occupational employees but not their former manager. The case is in litigation and Defendant is represented by counsel. Is there any ethical problem with Attorney making those contacts directly with the former occupational employees? ANSWER: Attorney may not directly contact the former employees if their acts or omissions may impute liability on the employer or if they may make statements that constitute admissions on the part of the employer. Attorney may directly contact the former employees if neither of these circumstances apply, since Attorney has already indicated that they did not have managerial responsibility for the employer.

QUESTION: Attorney represents the seller in a purchase and sale agreement that expressly requires that the seller send certain documents and notices to the buyer. Does Rule 4-4.2 concerning communications with persons represented by counsel prohibit the Attorney, acting on the seller´s behalf, from sending such notices and documents directly to the buyer when the buyer is represented by counsel? ANSWER: Attorney should ask the buyer´s attorney whether the buyer´s attorney would accept the documents and notices on behalf of the buyer. If the buyer´s attorney does not indicate that he or she will accept the documents and notices on behalf of the buyer, Attorney may send them directly to the buyer.

QUESTION: Defendant´s Attorney would like to contact a former business manager of Plaintiff, who was in a position, at the time of employment to make admissions concerning financial topics and other business topics on behalf of Plaintiff. Attorney would like to contact the business manager and conduct a tape recorded telephone call rather than expending the money on a deposition. Attorney would be doing it without the knowledge or consent of Plaintiff or Plaintiff´s counsel. During pending litigation, may Attorney contact the former business manager of Plaintiff, whose ties to Plaintiff have been completely severed? ANSWER: If the former business manager was employed by Plaintiff during the time period that covers the subject matter of the suit, Attorney may not directly contact the former business manager. If the former business manager is represented by independent counsel regarding the matter, Attorney may make the contact through the independent counsel.

QUESTION: Attorney works for an agency that is seeking to intervene on behalf of X for the primary purpose of securing the removal of X´s guardian based on allegations that the guardian is not acting in X´s best interests. X´s guardian is an attorney, but is not retained or appointed to represent X or X´s estate. Attorney would like to contact X about the matter. May Attorney do so without contacting or informing X´s guardian? May Attorney enter into an attorney-client relationship with X without contacting or informing X´s present guardian? ANSWER: Attorney may make contact with X and may discuss an attorney-client relationship with X prior to contacting or informing the guardian, without violating Supreme Court Rule 4, including Rule 4-4.2.

QUESTION: Attorney is currently investigating an employment discrimination case. Client was sexually harassed by a supervisor and eventually voluntarily terminated employment. Unknown to Client, another employee was harassed by the same individual. The other employee only worked for the company for a brief time and was not in a management position. Attorney would like to take a statement from this other employee. The witness was merely a fact witness and the witness had no direct involvement in the allegations made by Client. Would this violate Rule 4-4.2? ANSWER: Based upon the information Attorney has provided, Attorney would not violate Rule 4-4.2 by making direct contact with Client´s former co-worker. Different or additional information could change this opinion.

QUESTION: Attorney represents a client and has filed suit against an individual defendant. The defendant has been served with process. No attorney has entered an appearance for the defendant and Attorney knows of no attorney representing the defendant. May Attorney´s investigator contact a bookkeeper that is employed by defendant regarding the subject of the representation? ANSWER: Based upon the information Attorney has provided, Attorney may make direct contact with the bookkeeper without violating Rule 4-4.2.

QUESTION: Attorney´s firm represents individuals who are suing a company as a result of an auto accident. Attorney has taken the deposition of the driver involved in the collision and learned that the company may have not always done all of the preventive maintenance required by law. This is an issue in the lawsuit. Attorney would like to speak with former employees. Attorney has the names of employees who were drivers and mechanics, not managerial employees. May Attorney contact the above described former employees without the knowledge or consent of the defendant´s attorney? ANSWER: Under the second paragraph of the comment to Rule 4-4.2, Attorney may not directly contact current or former employees if they fit within any of these categories: "persons having the managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization." It appears that some of the employees whom Attorney would like to contact may fall within one of these categories. However, it is possible that some of the employees described do not fall within any of these categories. If any of the three categories apply to an individual, Attorney may not contact that individual without going through the employer´s counsel, unless the individual has his or her own counsel related to this matter.

QUESTION: Attorney represented Client 1 in a settlement of a sexual harassment claim. Client 1 left the employer after the settlement of the claim. Attorney now represents Client 2, who works for the same employer. Client 2 was supervised by Client 1. Both Clients 1 and 2 were management level employees. Client 2 alleges that Client 2 was fired in retaliation for supporting Client 1´s claim of sexual harassment. The alleged retaliation and termination occurred after Client 1 left the employer. Client 1 did not participate and had no managerial responsibility over the termination of Client 2. May Attorney contact Client 1, regarding Client 2´s matter, without violating Rule 4-4.2? ANSWER: Under the circumstances Attorney has described, it is permissible for Attorney to contact Attorney´s former client, Client 1, without violating Rule 4-4.2.

QUESTION: Attorney represents A, who was involved in a motor vehicle accident with B. Attorney has entered into settlement negotiations with the claims adjuster from B´s insurance company. Attorney would like to make certain that B is fully apprised of the status of the settlement negotiations, may Attorney copy B on all correspondence to the claims adjuster? ANSWER: Rule 4-4.2 does not prohibit direct contact if the other party is not known to be represented by a lawyer, even if a claims adjuster is involved.

QUESTION: Attorney represents client in an employment discrimination action. The client was an area manager for a Corporation. Attorney would like to contact other area managers from other states. None of these employees had "the managerial responsibility" over the client, and none were involved in the client´s termination. May Attorney contact these individuals? Attorney would also like to contact the clients temporary replacement. May Attorney contact the temporary replacement? ANSWER: Based upon the information Attorney has provided, it would not violate Rule 4-4.2 for Attorney to make direct contact with either of the individuals Attorney has described. However, different or additional information could change the opinion.

QUESTION: Attorney is representing an individual who was injured on certain property. The property is owned by a husband and wife. The owners have had either hired managers to oversee their property or done it themselves. A realtor managed the property at the time of the accident, but no longer does. The owners are not a corporation, they are individuals. May Attorney speak with the realtor who managed the property at the time of the accident? The realtor is not a party to the suit and Attorney does not know if the realtor has an attorney. ANSWER: Attorney may not make ex parte contact with the realtor without violating Rule 4-4.2. Under State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 201 fn. 2 (Mo. banc 1993), a sole proprietorship is considered an organization for purposes of Rule 4-4.2.

QUESTION: Attorney frequently receives calls from potential clients who are currently represented by another attorney. How should Attorney handle this situation? May Attorney invite the potential client to come to Attorney´s office for a consultation? May Attorney offer the potential client a contract if that is what the potential client desires? May Attorney take over the representation of the matter if that is what the potential client asks of Attorney? May Attorney assist the new client in drafting a letter to the other attorney indicating that the client wishes to terminate the relationship if it is at the request of the client? ANSWER: Attorney may talk with and consult with a person who is already represented by counsel but who is seeking legal advice from Attorney regarding the matter. If the person chooses to hire Attorney, Attorney may enter into a contract with that person and assume the representation. Attorney may also assist the client with informing the other attorney that the client is terminating that attorney-client relationship. Rule 4-4.2 does not apply to this situation because Attorney is not representing a client in Attorney´s communications with the person who is seeking to consult with Attorney. This opinion only addresses the Rules of Professional Conduct. It does not address any legal issues that may be involved in termination of the attorney-client relationship.

QUESTION: Attorney representing the defendant recently settled a personal injury case at a mediation. Attorney has since mailed the settlement check, release and stipulation of dismissal to plaintiff´s attorney, but has not received the papers back. Attorney has been contacted by the plaintiff, who wanted to ask Attorney some questions about the history of the settlement negotiations. The plaintiff has some concerns and now wants to verify facts. Attorney informed the plaintiff that they could not speak while the lawsuit is still pending, even though a settlement has been reached. May Attorney discuss this matter with the plaintiff after the case is dismissed? ANSWER: Once the personal injury matter is finally concluded, Attorney may discuss the history of the case with the plaintiff, with the consent of Attorney´s client.

QUESTION: Attorney represents a client in a criminal allegation of child abuse. No charge has been filed, but the client is currently under investigation. Attorney B represents the same client concerning an exparte order in which the claim of child abuse is listed on the petition. Attorney C represents the parent of the abused child concerning the petition. Attorney believes that the parent is a material witness in Attorney´s criminal cases and would like to interview the parent without consulting Attorney C. Does Rule 4-4.2 prevent Attorney from doing this? If so, does the constitutional right to effective assistance of counsel override the prohibition? ANSWER: Based upon the information Attorney has provided, Attorney would violate Rule 4-4.2 by contacting the parent directly. The duty to provide effective assistance of counsel does not negate the Rules of Professional Conduct. Attorney may contact the parent through Attorney C.

QUESTION: Attorney is consulted to investigate and possibly represent a client in a legal malpractice action against Attorney X. In the course of Attorney X´s representation of the client, certain matters were delegated to associated Attorney Y, who was employed by Attorney X. Associate Attorney Y has now left the employment of Attorney X. May Attorney contact Attorney Y to discuss the facts and circumstances of Attorney Y´s representation of the client, providing the client signs an appropriate waiver of the attorney/client privilege? ANSWER: Under the circumstances Attorney has described, it would violate Rule 4-4.2 for Attorney to make direct contact with Attorney Y. However, if Attorney Y is represented by an independent attorney, Attorney may contact Attorney Y by going through Attorney Y´s counsel.

QUESTION: Attorney represents a plaintiff suing a trucking company involved in an automobile accident. Attorney would like to question a co-driver who was a passenger at the time of the accident about what the co-driver saw and heard as a witness. Attorney would also like to question an employee of the trucking company who worked in the office at the time of the accident. Would Rule 4-4.2 prohibit Attorney from talking to these two individuals informally? ANSWER: The comment to Rule 4-4.2 describes three categories of people with whom it is improper to make direct contact. It includes those who can make admissions, those with managerial responsibility, and those whose acts or omissions could be imputed to their employer. It is possible, based on the information provided, that the two people Attorney has described could fall within one or more of these categories. The determination of whether they fall into those categories involves legal, as opposed to ethical, issues. An informal advisory opinion cannot resolve these legal issues.

QUESTION: Attorney has a pending medical malpractice action against a corporation. Attorney would like to contact former employees to see if they have relevant evidence on the issues in question. May Attorney make contact? ANSWER: Under Rule 4-4.2, the test to determine whether Attorney may make ex parte contact with an employee or former employee is a functional test which is set out in the comment. If the employee is one whose acts or omissions can be imputed to the employer or who can make admissions which will be binding on the employer, Attorney may not make contact with that employee without going through the employer´s attorney or another attorney who represents the employee in that matter. Attorney also may not directly contact current or former management employees who had management duties related, in any way, to the situation involved in the matter. The issues of imputed liability or the ability to make binding admissions are legal issues not addressed by the Rules of Professional Conduct.

QUESTION: Attorney represents the plaintiff in an employment discrimination claim against one represented corporate defendant and one unrepresented individual defendant. The individual defendant is a former management employee of the corporate defendant. Question 1. May Attorney conduct ex parte communications with the individual unrepresented defendant? Question 2. May Attorney conduct ex parte communications with former employee witnesses, management or non-management, who are not a party in the litigation? ANSWER: Question 1. No. Under Rule 4-4.2, Attorney may only contact the individual defendant through the attorney for the corporate defendant or through a separate attorney representing the individual defendant. Question 2. Attorney may make ex parte contact with current and former non-management employees of the corporate defendant if those employees cannot make admissions binding on the corporate defendant and their acts or omissions regarding the matter will not be imputed to the corporate defendant for purposes of liability. Attorney may not make ex parte contact with current or former management employees.

QUESTION: Attorney represents a plaintiff in a medical malpractice case. Defendant identified a doctor as an expert and then stated that the defense would not be using the doctor to testify in the case. May Attorney contact the doctor directly regarding the case? ANSWER: Attorney may make direct contact with the doctor, without violating Rule 4-4.2 as long as Attorney does not know, or have reason to know, of any attorney representing the doctor. If Attorney does contact the doctor, under Rule 4-4.3, Attorney must make Attorney´s role in the matter clear and Attorney must refrain from giving the doctor any advice.

QUESTION: Attorney represents the injured party in a slip and fall which occurred at a business. Attorney is not aware of any attorney who may be representing the business. Attorney is aware of employees of the business who were working at the time but does not know whether either might be a manager. May Attorney interview any of these employees? ANSWER: If Attorney does not know of, or have reason to know of, any attorney who may be representing the business, Attorney may interview the employees. However, in the course of interviewing these employees, Attorney must pay close attention to Rule 4-4.3 and the comments to that rule.

QUESTION: Attorney represents a claimant in an automobile accident. Suit has not been filed. Attorney has been dealing with the insurance company which insures the other vehicle. Attorney is not aware of any attorney representing the other person. May Attorney send a copy of correspondence to the adjuster to the other person? May Attorney include comments about the adjuster´s settlement offer? ANSWER: If Attorney does not know or have reason to believe that the other person is represented by a specific attorney in this matter, Attorney may communicate directly with that person, including sending a copy of Attorney´s correspondence to the adjuster, with or without a cover letter. Attorney should be certain that all such communications, comply with Rule 4-4.3. Attorney should pay particular attention to the last sentence of the comment to Rule 4.3.

QUESTION: Attorney represents a plaintiff in a personal injury suit. Attorney would like to conduct an ex parte interview of the doctor whom defendant has identified as an expert. May Attorney do so? ANSWER: The Rules of Professional Conduct do not prevent an ex parte contact with the expert as long as such contact does not violate the rules of discovery. Whether such contact violates those rules has been the subject of several appellate opinions. A legal issue under the discovery rules is not within the scope of an informal advisory opinion.

QUESTION: Attorney represents a client in a repossession matter. Under the statute, Attorney is required to notify the debtors of the right to cure. Should this notice go through the debtors" attorney. If the notice goes directly to the debtors will Attorney be violating Rule 4-4.2? ANSWER: Attorney should request that the debtors" attorney accept the notice. If their attorney refuses to accept notice on behalf of the debtors, Attorney may give notice directly to the debtors without violating Rule 4-4.2.

QUESTION: Attorney represents a client who was a manager of a store, in a wage case against the former employer. Attorney would like to directly contact another former manager to determine if the former manager was treated the same as Attorney´s client. May Attorney do so? The former manager´s acts or omissions are not involved and the former manager would not be able to make admissions binding on the company. ANSWER: If the former manager whom Attorney would like to contact did not have any involvement in management decisions affecting Attorney´s client, Attorney may contact the former manager without going through the company´s attorney. Otherwise, Attorney may not make contact with the former manager except through the company´s attorney or with that attorney´s consent.

QUESTION: In the course of representing the plaintiff in a personal injury case, may Attorney communicate with the person who Attorney believes is liable, if that person is not represented by counsel? Is the answer the same if the person is an employee of a company that is not represented by counsel? ANSWER: If Attorney does not know, or have reason to know, that the person whom Attorney intends to contact is represented by counsel, Attorney may make contact with that person and take a statement without violating Rule 4-4.2. If Attorney´s contact with that person is based on that person´s employment or former employment by an entity, that person may be considered to be represented if the entity is represented. The second paragraph of the comment to Rule 4-4.2 sets out the test. If Attorney does make contact with an unrepresented person, Attorney must follow the requirements of Rule 4-4.3.

QUESTION: Attorney A represents the plaintiff. Attorney B represents the defendant. Attorney A retains an expert. Attorney A refuses to designate the expert as an expert to be used at trial. Attorney B believes that the expert´s opinions will be helpful to the defense. May Attorney B contact the expert? May Attorney B require the deposition of the expert? ANSWER: The Rules of Professional Conduct do not prohibit Attorney from talking to the expert while no case is pending. If a case is pending, the Rules do not prohibit Attorney from interviewing the expert as long as such an interview does not violate the rules of discovery. Whether such contact would violate the rules of discovery is a legal question beyond the scope of an informal advisory opinion. If Attorney does contact the expert, regardless of whether a case is pending, Attorney must comply with Rule 4-4.3 if the expert is not represented by counsel. If the expert is represented by counsel, under Rule 4-4.2, Attorney must go through the expert´s counsel to contact the expert.

QUESTION: Attorney represents plaintiff and is concerned that defendant is not receiving complete legal advice regarding policy limits and possible issues of bad faith refusal to pay. Defendant is represented by an attorney hired by the insurance company to defend. What can Attorney do to communicate this concern to the defendant? ANSWER: Attorney may not communicate with the defendant directly, without violating Rule 4-4.2, since the defendant is represented by counsel. Attorney may only communicate with the defendant regarding this matter through the defendant´s counsel, informally or through the discovery process.

QUESTION: Attorney is licensed in Missouri and represents a party adverse to a corporate defendant. The lawsuit is filed in another state in which Attorney has been admitted as a visiting attorney. Attorney wants to conduct an ex parte interview of a former employee of the corporate defendant who resides in Missouri. The rules of the other state would permit such an interview. May Attorney conduct the interview? ANSWER: As long as all of the proceeding will be litigated under the jurisdiction of the courts of the other state, Attorney may follow the rules and rulings of the other state regarding Rule 4-4.2. However, the rulings which Attorney follows must be official interpretations of a court or disciplinary authority.

QUESTION: Attorney is representing a client against a governmental body in a case in which suit has been filed and the governmental body is represented by counsel. Attorney would like to obtain records of the governmental body by contacting a records clerk and making a Sunshine Law request under Chapter 610, RSMo. May Attorney obtain the records in this manner? ANSWER: Rule 4-4.2 does not prevent Attorney from requesting the records through Chapter 610, RSMo. However, the attorney should first attempt to obtain access to the records through the governmental body´s attorney.

QUESTION: Attorney represents Plaintiff. Plaintiff sued Defendant A and Defendant B. Plaintiff dismissed the suit against Defendant B. May Attorney depose an employee of Defendant B without notification to Defendant B and its counsel? ANSWER: Yes.

QUESTION: Attorney manages a federal government office that practices in all jurisdictions and has attorney who are licensed in various jurisdictions. Attorney asks about Missouri´s interpretation of Rule 4-4.2, especially related to contact with former employees, as it applies to attorneys in that office who are licensed in Missouri. ANSWER: Missouri´s interpretation of Rule 4-4.2 in relation to former employees is that they are treated the same as current employees. The Missouri Supreme Court established this interpretation and adopted the comment to Rule 4-4.2 in State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo banc 1993). However, if an attorney is involved in a case which will be entirely litigated within another state and the attorney is authorized to appear in the case in that state, through licensure or visiting attorney admission, the attorney will not be found to violate Missouri´s version of Rule 4.2 if the attorney complies with the other state´s version and interpretations of that rule for purposes of that case. However, the other state´s interpretations will not protect the attorney unless they are official interpretations of a court or disciplinary authority.

QUESTION: Attorney´s client has a claim of discrimination against Employer. May Attorney contact the following without going through the attorney for Employer: 1. managerial employee currently employed by Employer? 2. non-managerial employees currently employed by Employer? 3. managerial employees no longer employed by Employer? 4. non-managerial employees no longer employed by Employer? Do the answers change depending on whether or not charges have been filed with the EEOC or a complaint filed in court? ANSWER: Questions 1 and 3. If Attorney knows that Employer is represented by counsel in this matter, Attorney may not contact current or former managerial employees. Questions 2 and 4. Attorney may contact current and former non-managerial employees if they are not employees whose admissions would be binding on Employer and they are not employees whose acts or omissions would be imputed to employer. The answers do not change based on whether a complaint or case has been filed but they do change based on whether or not Attorney knows Employer is represented by counsel in this matter.

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.

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.

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? 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. Question (2): May Attorney speak with employees at other offices regarding the matter? 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). Question (3): May Attorney speak with former managerial or non-managerial employees of the same office? 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. 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 (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.

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.2d 200 (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."

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.

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.

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.

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.

QUESTION: May Attorney hire an investigator to do pretrial investigation who will make ex parte contact with witnesses whom 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.

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.

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.

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.

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.

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.

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? ANSWER: 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. QUESTION 2: Attorney represents an insurance company. May Attorney directly contact the opposing party to negotiate settlement? ANSWER: Regardless of whom Attorney represents, Rule 4-4.2 prohibits direct contact with a represented person regarding the subject of the representation.

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.

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.

QUESTION: Attorney asks about giving a second opinion at the request of an individual who is represented by another attorney in a pending matter. Does providing a second opinion violate the Rules? ANSWER: Providing a second opinion to a client of another attorney does not violate any provision of the Rules of Professional Conduct as long as the client is the one who has initiated the contact.

QUESTION: In a worker´s compensation case, employer´s attorney requests a medical examination of the employee. During the examination, the physician tells the employee he will send a copy of his report to the employee´s attorney. After several weeks and the report has not been received, the employee´s attorney telephones the physician and inquires about the status without discussing substantive matters. Is this an improper ex parte contact? ANSWER: The limited contact described, under the specific circumstances described, would not violate the Rules of Professional Conduct.

QUESTION: Attorney represents a client against a corporation. Attorney has been contacted by a former employee of the corporation with whom ex parte contact would be prohibited by Rule 4-4.2. The former employee has informed Attorney that he has information which would be helpful in the suit but that there are legal issues regarding his ability to provide the information. The former employee has retained his own attorney regarding these issues. May Attorney contact this attorney rather than the corporation´s attorney for permission to speak with the former employee. ANSWER: Yes.

QUESTION: Attorney is practicing as a visiting attorney in a case in a jurisdiction in which Attorney is not licensed. Attorney would like to make ex parte contact with former employees of the opposing corporate party. The former employees were not upper level management but may have been lower or middle level management. The former employees were not involved in the occurrence giving rise to the suit. The rules of the jurisdiction in which the suit will be heard may allow such contact. If Attorney may not contact the former employees directly, may Attorney´s client discuss the matter with the former employees if Attorney does not "coach" the client. ANSWER: If the former employees were management at any level, Attorney may not engage in ex parte contact with those employees. If the former employees were not management, the remainder of the analysis set out in the comment to Rule 4-4.2 must be performed. If the client engages in ex parte communications with the former employees, Attorney will not be violating Rule 4-8.4 by having another person do what the attorney may not do if Attorney has not, in any way, expressly or impliedly indicated to the client that he should engage in such communication. Because Attorney is licensed in Missouri, the Missouri rules will apply under Rule 4-8.5 although the case is in another jurisdiction.

QUESTION: Does Rule 4-4.2 apply in FELA cases the same as in other cases? ANSWER: Rule 4-4.2 applies but that rule allows ex parte contact if "the lawyer ... is authorized by law to do so." It is necessary to look to court decisions for interpretation of how statutes such as the FELA statutes apply to the facts of each particular case.

QUESTION: Attorney represents a client against a corporation which has counsel. May Attorney communicate regarding the subject of the representation with an unrepresented former employee of the corporation? What if the person was an independent contractor instead of an employee? ANSWER: Rule 4.2 applies the same to former employees as it does to current employees. State ex rel. Pitts v. Roberts, 857 SW2d 200, 202 (Mo banc 1993) indicates that the test depends on function rather than timing. The analysis to be used is found in the comments to the rule which were expressly adopted by the Court in Pitts. The term "person" in the comments can apply to an independent contractor as well as an employee.

QUESTION: Attorney is employed by a government agency in a non-attorney position which includes criminal investigations. The subject of a criminal investigation is also involved in related civil litigation with the agency and is represented by counsel. May Attorney interview the subject without going through the subject´s counsel? ANSWER: Rule 4-4.2 prohibits communication with a represented party "in representing a client." If Attorney is not practicing law, Attorney would not be representing a client and Rule 4-4.2 would not apply. However, if Attorney is operating at the direction of an attorney who is practicing law, Attorney´s conduct would be prohibited by Rule 4-8.4(a) because the attorney directing the conduct would be prohibited from contacting a represented party by Rule 4-4.2.

QUESTION: May Attorney make ex parte contact with three witnesses who work for a company whose driver was involved in an accident which is the subject of a suit? Witness #1:driver, dismissed as defendant, former employee, has been deposed. Witness #2:another driver for company, not involved in accident. Witness #3:another driver and vehicle maintenance, former employee, not a defendant. ANSWER: Witness #1: No. Witness #2: Yes. Witness #3: Not if this witness had any maintenance responsibility involving the vehicle in the accident regardless of whether the witness fulfilled that responsibility.

QUESTION: Attorney wishes to assert an attorney´s lien against a former client who is now being represented by another attorney. May attorney serve the notice directly on the former client? ANSWER: Attorney may only serve the former client directly if the new attorney refuses to accept service on behalf of the former client.

QUESTION: Attorney represents client in a slip and fall case. Can attorney conduct ex parte interviews with management employees of defendant or an employee of defendant who was present at the scene? One management employee is no longer employed by defendant. ANSWER: Rule 4.2 prohibits ex parte contact with any of these individuals. This rule does not prohibit investigation to locate an individual as long as no information is sought from the individual once he is located.