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