Yes, according to a recent State Bar of Georgia advisory opinion. See State Bar of Georgia Formal Advisory Op. 20-1. The advisory ethics opinion provides guidance on the application of Georgia Rules of Professional Conduct 4.2—commonly referred to as the “anti-contact rule”—to former organization employees:
Generally, a lawyer may communicate with a former employee of an organization that is represented by counsel without obtaining that counsel’s consent, provided that the lawyer fully discloses to the former employee, before initiating the communication, the following information: (1) the identity of the lawyer’s client and the nature of that client’s interest in relation to the organization (i.e., the former employer); and (2) the reason for the communication and the essence of the information sought. After making these disclosures, the lawyer must also obtain the former employee’s consent to the communication.
Furthermore, in communicating with the former employee, the lawyer must not utilize methods of obtaining information that would violate the legal rights of the former employee or the represented organization, such as inquiring into information that may be protected by the attorney-client privilege or other evidentiary privilege.
Finally, if the lawyer knows or at any point determines that the former employee is individually represented by counsel in the matter, the lawyer may not communicate with the former employee, unless authorized by law or court order to do so, without obtaining the former employee’s counsel’s consent.
See id. at 1.
Is this permissible in Louisiana?
May a Louisiana lawyer permissibly contact a represented organization’s former employee to acquire relevant information without obtaining the consent of the organization’s counsel? Yes. Louisiana Rule 4.2 provides that “a lawyer in representing a client shall not communicate about the subject of the representation with a person the lawyer knows is presently a director, officer, employee, member, shareholder or other constituent of a represented organization…” See La. Rules of Prof’l Conduct r. 4.2(b) (emphasis added). Given this language, former employees of an organization are outside of the scope of rule 4.2’s “anti-contact” provisions and consent of the organization’s counsel is not needed prior to initiating communications.
In no event, however, may a lawyer seek to communicate with an employee or former employee who is independently represented by counsel. See La. Rules of Prof’l Conduct r. 4.2(a) (2004). Furthermore, in no event may a lawyer seek to obtain from any present or former organizational constituent “information that the lawyer reasonably should know the non-client may not reveal without violating a duty of confidentiality” to the organization. See Restatement (Third) of the Law Governing Lawyers § 102 (2000).
Louisiana courts have excluded from evidence statements made by represented persons in violation of this rule. For example, in State v. Gilliam, 748 So. 2d 622 (La. Ct. App. 4th Cir. 1999), the Louisiana Fourth Circuit held that “where there is an improper communication discovered or considered before it is used at trial, and a violation of the ethical rule is found, it should be held inadmissible.” See id. (citing Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695 (W.D. La. 1997); In re Shell Oil Refinery, 144 F.R.D. 73 (E.D. La. 1992)).
In summary, a lawyer does not need to obtain the consent of an organization’s counsel to communicate with a former employee of the organization. The lawyer must, however, obtain the consent of the former employee’s counsel if the former employee is independently represented in the matter.