The focus of this Article is on the possibility that a lawyer informally seeking evidence about an employer from a former employee will run afoul of the still-evolving tort of intentional interference with contract. Now that it is clear that the ethical rules allow attorneys to contact former employees without notice to, or the consent or presence of, counsel for their former employer, lawyers can use informal methods of investigation to take advantage of the very useful information former employees often have about the wrongdoings of their former employers as long as they steer clear of attorney–client privileged and work product information and a few other avoidable ethical potholes. At the same time, the use of post-employment confidentiality or non-disclosure agreements (NDAs) has proliferated. If the former employee in question is subject to an NDA, informal pre- or post-filing investigative conversations with former employees could be viewed as tortious interference with these agreements and therefore a violation of Model Rule 4.4 as well.
An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference with Former Employee Non-Disclosure Agreements, and the Threat of Disqualification, Part I,
89 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol89/iss4/8