In January, the Virginia Supreme Court adopted Legal Ethics Opinion (LEO) 1890 regarding Rule 4.2 of the Virginia Rules of Professional Conduct.
Rule 4.2, referred to as the “no contact rule,” prohibits attorneys from discussing the “subject of [a] representation” with a person known to be represented by counsel. LEO 1890 reaffirmed Virginia’s interpretation of Rule 4.2, which excludes discussions with former employees of a represented organization and only restricts ex parte or direct communications with a current employee if he or she is a member of “the ‘control group’ or a part of the ‘alter ego’ of the represented organization.”
Just a few months later, in the middle of an unforeseen pandemic, the Virginia Supreme Court issued a two-sentence order that vacated LEO 1890. This law firm’s blog notes that the Virginia Lawyers Weekly has reported that two attorneys had voiced opposition to the Virginia Bar’s approval of LEO 1890 specifically because it “allow[ed] attorneys to interview employees of a litigation target without notice to the employer.” The blogger suggests that perhaps the Court decided to distance itself from a narrow interpretation of the scope of the control group/alter ego exception.
Although LEO 1890 was set aside by the Virginia Supreme Court, Rule 4.2 remains in place, and provides that opposing counsel may communicate directly with represented organizations’ non-control group employees regarding ongoing or potential litigation.
Read the order here.
