Opinion 93-9
(September 1993)

You have requested a written opinion by the Professional Guidance Committee concerning whether it is ethical for you to conduct ex parte interviews with unrepresented persons formerly associated with the Plaintiff in a lawsuit in which you represent one of the defendants. The circumstances giving rise co your inquiry are as follows:

You represent an outside consultant who performed services for Bank A which was subsequently acquired by Bank B. These institutions are suing your client and two former members of the Board of Directors alleging fraud in the making and administration of real estate loans which were reviewed and approved by the Board of Directors of Bank while the Board was acting as the loan committee.

The consensus of the Professional Guidance Committee is that ex parte interviews are permissible from an ethical standpoint for those reasons cited by the Pennsylvania Bar Association Opinion 90142 to which you refer in your inquiry. Specifically, by its terms, the prohibitions set forth in Rule 4.2, Communication with Persons Represented by Counsel, do not apply to former employees, regardless of their former level of managerial responsibility. See also this Committee's Opinion 89-6.

Rather, Rule 4.3, Communication with Persons Unrepresented by Counsel, is applicable and requires that you abide by certain caveats when interviewing unrepresented persons. See Pennsylvania Bar Association Opinion 90-142.

However, you should be aware that your inquiry raises not only ethical considerations but also substantive legal issues, including but not limited to (1) whether or not there are fiduciary duties owed by the prospective interviewees to the Plaintiff Bank(s); (2) the existence of attorney-client privilege issues; and (3) the risk of disqualification of you and your firm or the exclusion of any information you may obtain from ex parte interviews. Because this Committee's opinion is limited to the ethical rules relating to the facts as you describe them, you should investigate the substantive legal issues relating to the contemplated ex parte interviews.

You have further advised us that one of the witnesses is a New Jersey resident. We note, as you referred in your inquiry, that New Jersey's ethical standards, if applicable, may be different.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.