"Adverse Counsel Contacting Former Employees - What Rules Apply?"
In an article published in the Association of Corporate Counsel (ACC) Georgia Chapter's summer newsletter, Partner Carol Michel and Associate Jason Vuchinich discuss guidelines and regulations surrounding adverse counsel contacting former employees.
"Former employees pose risks for corporate defendants facing suit, and navigating interactions with them requires adherence to relevant ethical rules such as Georgia Rule of Professional Conduct 4.2, which prohibits contact with individuals represented by counsel," the authors write. "The terms of their departure and their sentiments about their former employer will influence their testimony - good or bad. Adverse lawyers are acutely aware of their pressure point and regularly seek to use it to their advantage."
Michel and Vuchinich further explain a new opinion that Georgia's Formal Advisory Opinion Board filed with the Supreme Court of Georgia to address the question of whether a lawyer can properly communicate with a former employee of a represented organization to acquire relevant information without obtaining the consent of the organization's counsel.
"The quick answer is yes, if before interviewing the former employee, the lawyer identifies: (1) their client and their client's interest as it relates to the organization; and (2) the purpose of the contact and the essence of the information sought," they explain. "If after these disclosures are made the former employee consents, then the lawyer may proceed."
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