Inquiry has been made concerning the propriety of an attorney
interviewing non-administrative or non-management level employees of
the plaintiff without the knowledge and consent of the plaintiff.
The attorney represents a general contractor sued for damages in connection with
problems with a roof at a correctional institution. The plaintiff in the action is the State
of Tennessee ex rel Commissioner of the Tennessee Department of Correction.
The inquiring attorney believes that there are various persons who were employed by the
State of Tennessee at the time of the construction of the project, and shortly thereafter,
who possibly have knowledge of facts and circumstances which may be relevant to the
trial of the action. These are persons affiliated with the Department of Correction or with
the office of the State architect.
The attorney specifically wishes to talk
with certain present and former employees of the
Department of Correction and the office of the State architect, including the State
architect himself who now is employed by the University of Tennessee.
The prohibition of DR 7-104 against an attorney communicating with an adverse party
whom he knows to be represented by a lawyer does not apply to communications with an
employee of the State, where the State alone is the other party to the controversy. See
Vega v. Bloomsberg, 27 F.Supp. 593 (D.C. Mass. 1977). An attorney representing a
party adverse to the State should identify himself to the State employee whom he desires
to interrogate, and should inform the employee of the controversy and of the reason for
his inquiry. See In re: FMC Corp., 430 F. Supp. 1108 (D.C. W Va. 1977).
This 22nd day of February , 1982.
W. H. Lassiter, Chairman
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD