The Michigan Rules of Professional Conduct provide that: In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
The rule itself does not specifically address who the client is in the case of a corporation. The courts in Michigan and other states have issued opinions on this issue. The majority rule is that former employees can be contacted by counsel, although access to former managers and directors is restricted. The logic is that higher level employees may have access to privileged information. Courts restrict access to higher level personnel on the basis that these employees have a fiduciary duty to protect the employer's proprietary information and also that such employees may continue to find the corporation through their acts and omissions even after the termination of the employment relationship.
The courts have rejected defendant employer's arguments that all of its employees are "represented by counsel for defendant," and so cannot be contacted. Carter-Herman v City of Philadelphia, 892 F Supp 899 (E.D. Pa. 1955). It is clear that a plaintiff's counsel may contact at least some employees of a defendant corporation.
Several tests have been developed to be used in determining which of these current employees may be contacted. However, the issues in making such determination generally boils down to whether the employee is in a managerial position, and whether the employee can bind the company with his or her statements.
With regard to former employees, counsel for plaintiff may not contact any such employees unless there is specific agreement between that former employee and the corporation's counsel for representation. Of course, if the former employee is separately represented, the ethical role provides that ex parte contact would be improper.