16.03.02. Identifying who is “Represented” in the Organizational Context

An organization cannot speak for itself – it is a legal fiction.  It must speak through its constituents.  However, recall that the lawyer does not represent an organization’s constituents for purposes of attorney client privilege or other ethical obligations. However, because constituents must speak for the organization, the question for purposes of the non-contact rule is:  who does the lawyer “represent” in the organization that are off limits for opposing counsel communicating with without the consent of the organization’s lawyer?

Current Employees

The lawyer clearly represents some of the current employees of the organizational client.  The Comment to Rule 4.2 identifies two sets of employees that are off-limits to opposing counsel (“represented” under the no contact rule).  They are:  (1) “constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter”; and (2) those constituents “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”[1]  The Wisconsin Ethics Committee Opinion in the Readings discusses how to identify who falls into these categories.

Former Employees

This is easy.  Former employees are not represented under Rule 4.2.  Therefore, opposing counsel can communicate directly with former employees of an organization – even if the organization has a lawyer.[2]  Of course, if the former employee has their own lawyer, the non-contact rule applies, but the organization’s lawyer cannot prohibit the communication.

[1] ABA Rule 4.2, Comment [7].

[2] ABA Rule 4.2, Comment [7] (“Consent of the organization’s lawyer is not required for communication with a former constituent.”).