Illinois Rule of Professional Conduct 4.2 generally prohibits a lawyer who is representing a client from dealing directly with others who have their own counsel in the matter. However, the text of the rule does not indicate which employees of a corporation are considered to be represented for purposes of applying the rule.
A 1984 Illinois appellate court decision held that the anti-contact rule, then codified as DR 7-104, should be construed to prevent direct communications with persons in a corporation's “control group,” consisting of its top decision-makers and top advisors.
In a new opinion, the Illinois State Bar Association's Committee on Professional Ethics, however, has repudiated the narrow “control group test” for communications with current constituents in favor of the ABA's broader three-part standard (Op. 09-01, 1/09).
Endorsing the commentary to Model Rule 4.2, the opinion advises that three categories of current employees are off-limits for direct talks: those whose job brings them into regular contact with corporate counsel; those who have authority to obligate the entity in the matter; and those whose conduct in the matter is imputable to the company.
Following a long held view on a similar issue, however, the Committee reiterated that former employees of a represented party are fair game for informal interviews.
For more information go to this article in the ABA/BNA Lawyers' Manual on Professional Conduct: 25 Law. Man. Prof. Conduct 194.