in Re: Formal Advisory Opinion No. 20-1

The State Bar of Georgia's advisory board updates guidance for lawyers on tricky ethics questions. An older 1994 opinion said lawyers could contact former employees of a represented organization, like a company being sued, to gather information for a case, as long as they made certain disclosures. After the state's ethics rules changed and an outdated cross-referenced opinion was withdrawn, the Board rewrote the guidance as FAO 20-1 to match the current Georgia Rules of Professional Conduct. A group called the Georgia Defense Lawyers Association objected, arguing the rule protecting represented organizations from unauthorized contact should cover former employees too. The Supreme Court of Georgia disagreed, explaining it had already clarified in 2011 that the anti-contact rule's protections do not extend to former employees. The court approved the new opinion, with minor edits removing references to American Bar Association rules, replacing the old 1994 opinion.

A lawyer may communicate with a former employee of a represented organization without the organization's counsel's consent, so long as the lawyer discloses the client's identity and interest and the reason for and subject of the communication, obtains the former employee's consent, avoids privileged information, and defers to any separate counsel representing that former employee individually.

The ruling gives Georgia litigators clear permission to interview former employees of an opposing company without needing consent from that company's lawyer, as long as they make required disclosures, which affects how lawsuits against businesses and organizations are investigated and litigated statewide.

Formal Advisory Opinion No. 20-1 approved as modified

1. The court reviewed Georgia Rule of Professional Conduct 4.2, the 'anti-contact rule,' which bars a lawyer from discussing a legal matter with someone known to be represented by another lawyer in that matter without that lawyer's consent.
2. The court examined Comment 4A to Rule 4.2, which lists specific categories of current employees covered by the anti-contact rule, such as those who supervise or consult with the organization's lawyer, but does not mention former employees at all.
3. Because the comment lists categories of protected employees and never includes former employees, the court concluded the only reasonable reading is that Rule 4.2's protections do not extend to former employees of a represented organization.
4. The court relied on its own 2011 order amending Comment 4A, which had removed broader language and specifically noted that communications with former employees are instead governed by the separate advisory opinion, showing the court had already resolved this issue.
5. Because Rule 4.2 does not cover former employees, the court turned to Rule 4.3, which requires a lawyer dealing with someone not represented by counsel to avoid pretending to be neutral and to explain the reason for contacting them, and used that rule to require specific disclosures before any such communication.
6. Applying these rules together, the court adopted the Board's proposed disclosure and consent requirements for contacting former employees, while trimming references to American Bar Association materials that are not binding authority under Georgia's own rules.

• attorney ethics
• former employee contact
• anti-contact rule
• Georgia Rules of Professional Conduct
• State Bar advisory opinion