Can Opposing Counsel Contact My Former Employees?

Posted by Katherine M. Silverman on

Georgia Bar rules generally prohibit an attorney from contacting a represented party, whether the adversary is an individual or a company. All communications should be routed through the adversary’s attorney. But what about a company’s former employees? Can a lawyer reach out to employees that left the company to try to get relevant information without obtaining permission from the company’s lawyer?

According to the latest advice from the Georgia Bar (Georgia Bar Formal Advisory Opinion 20-1), the answer is yes – with a few caveats.

Caveats – Disclosure and Consent
Generally, a lawyer may contact a former employee of an organization that is represented by counsel without obtaining that counsel’s consent, provided that the lawyer makes certain disclosures to the former employee.

  • The lawyer must identify who they represent and identify their client’s relationship to the organization; and
  • The lawyer must clearly identify the reason they are contacting the former employee.

After providing these disclosures, the lawyer also must explicitly obtain the former employee’s consent to the communication.

Practical Meaning
So, what does this actually mean?

A lawyer can’t try to “get dirt” on your company by calling your former employees and misrepresenting the nature of the call. Similarly, a lawyer can’t instruct her paralegal to send messages to your former employees on social media soliciting information about your company. If a lawyer is going to contact a former employee of a represented company, the lawyer needs to clearly identify themselves, explain the reason they’re calling, and describe the information they are seeking.

Important Steps
So, how do you protect yourself and limit the information that your former employees can share with opposing counsel?

First, consider whether the employee had access to any privileged or confidential information. If your former employees are subject to a non-disclosure agreement based on their employment agreement or separation agreement, they are bound to uphold the terms of that non-disclosure agreement.

Second, if the employee had access to information that is subject to the attorney-client privilege, they have an obligation to maintain the confidentiality of that information.

Finally, if the employee had access to your company’s trade secrets, they could be liable for damages if they expose privileged information.

If you are concerned that a former employee may disclose confidential information to an adversary’s lawyer and you need legal advice regarding your rights and responsibilities, please reach out to me.