State Bar of Arizona Ethics Opinions
89-05: Opposing Party and Counsel; Communication with Person Represented by Counsel
Committee Deadlocked; Two alternative opinions were issued. In Opinion A., the divided committee concluded that is not improper for a lawyer or his/her agent to interview a former employee of a co-defendant without first obtaining the consent of the codefendant's counsel. In Opinion B., the committee opined that ex parte contact with a former employee is prohibited if the acts or omissions of the former employee, while employed, may be imputed to the employer for purposes of establishing liability; the contact may be improper if the former employee has had communications with the former employee's counsel that are protected by the attorney/client privilege. Both committee conclusions would not differ if the co-defendant had obtained from the plaintiff a covenant not to execute in order to shield it from exposure to the plaintiff.
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