in Re: Formal Advisory Opinion No. 20-1

This case is not a dispute between two parties but a review of a State Bar ethics opinion. The State Bar's Formal Advisory Opinion Board rewrote an old 1994 ethics opinion (FAO 94-3) to reflect current Georgia ethics rules and remove outdated references, producing new Formal Advisory Opinion 20-1. The Georgia Defense Lawyers Association objected, arguing that the ethics rule barring contact with represented parties should also cover former employees of a represented organization. The Supreme Court of Georgia disagreed with that objection. It held that the rule's protections do not extend to former employees, but a lawyer contacting a former employee still must follow separate rules requiring honesty about who they represent and why they are reaching out. The court withdrew the old opinion and approved the new one, with some modifications removing references to American Bar Association materials.

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, the client's interest, and the reason for and subject of the communication, and then obtains the former employee's consent.

The ruling gives Georgia lawyers, especially those handling lawsuits against businesses and organizations, clear guidance that they can interview former employees for case information without needing permission from the organization's lawyer, as long as they are upfront about their role and purpose.

Formal Advisory Opinion 20-1 approved as modified; FAO 94-3 retracted

1. The court examined Georgia's anti-contact rule (GRPC 4.2), which bars a lawyer from discussing a case with a person known to be represented by another lawyer in that matter, unless that lawyer consents or the law authorizes it.
2. It looked at Comment 4A to Rule 4.2, which lists which employees of an organization count as protected: those who supervise or consult with the organization's lawyer, can bind the organization, or whose actions could be blamed on the organization, and noted the comment never mentions former employees.
3. Because the 2011 amendment to Comment 4A deliberately removed the phrase 'former employee' and pointed instead to the separate advisory opinion, the court concluded the anti-contact rule was never meant to cover former employees.
4. The court then turned to Rule 4.3, which governs dealings with people not represented by a lawyer, and found it requires a lawyer contacting a former employee to be clear about not being neutral and to explain who the client is and why they are asking questions.
5. Applying these rules together, the court adopted the Board's revised opinion requiring disclosure of the client's identity, the client's interest, and the reason for the contact, followed by obtaining the former employee's consent before further communication.
6. The court modified the Board's draft only to remove reliance on American Bar Association model rules and commentary, explaining that Georgia's own rules control and ABA materials are merely persuasive, not binding, authority.

• attorney ethics
• former employees
• anti-contact rule
• State Bar of Georgia
• professional conduct rules