According to STSW lawyer Geoff Hengerer, attorneys preparing for litigation against business entities frequently discover former employees who possess potentially relevant information. Before reaching out to these individuals without first informing opposing counsel, however, one must turn to the Maryland Rules of Professional Conduct.
Pursuant to Rule 4.4(b), there is no blanket prohibition against ex parte communications with “third persons,” which specifically includes former employees as noted in Comment 6 of Rule 4.2 and Comment 2 of Rule 4.4; see also, e.g., Chang-Williams v. United States, No. DKC 10-783, 2012 WL 253440, at *4 (D. Md. Jan. 25, 2012) (rejecting the government’s request to block all ex parte communications with former employees “merely because their acts or omissions may be imputed to the government”). Attorneys, however, do not have carte blanche when contacting these individuals. In particular, attorneys cannot seek information from a former employee “relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege.” Md. R. Prof’l Conduct 4.4(b). As discussed further below, this prohibition typically governs situations where the individual has information protected by the attorney-work-product doctrine or attorney-client privilege, but it also extends to individuals with “specific confidentiality protection[s], such as trademark, copyright, or patent law.” Md. R. Prof’l Conduct 4.4, cmt. 2.
While attorneys in Maryland can generally engage in ex parte communications with former employees, they have no such latitude when it comes to current employees of a party-opponent. In particular, Rule 4.2(a) states that “a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter.” Md. R. Prof’l Conduct 4.2(a). When the party is a corporation or other organization, the no-contact rule extends to “(1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability.” Md. R. Prof’l Conduct 4.2(b).