Legal Ethics Opinion #1527

Communicating With Adverse Party: Attorney/Corporate Shareholder
Communicating With Officers and Employees of Corporation After He 
Has Filed Suit Against Corporation

You have presented a hypothetical situation in which an attorney
is a shareholder in a corporation and has filed suit in his own
name against the corporation which is represented by counsel. The
attorney/shareholder is concerned that the directors of the
corporation are not receiving accurate information about the
nature of his claim. 

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the attorney, who has filed suit in
his own name against a corporation in which he is a shareholder,
to communicate directly with officers, directors, and employees
of the defendant corporation.  Specifically, you have asked the
committee to consider whether the attorney/shareholder may
transmit his offer to sell his stock directly to the directors
and shareholders of the corporation rather than through the
corporation's attorney, where the terms of the shareholder's
agreement require the secretary to transmit notice of an offer to
sell stock to other shareholders.  In addition, you have asked
the committee to consider the propriety of the attorney
discussing the pending litigation in a request that the matter
regarding his offer to sell stock be placed on the Agenda for a
shareholders meeting. 

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 7-103(A)(1), which states that a lawyer shall not
communicate or cause another to communicate on the subject of the
representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the
lawyer representing such other party or is authorized by law to
do so.  [emphasis added]

The committee believes that the answer to your question requires
a step-by-step analysis of the elements contained in DR 7-
103(A)(1) and their impact on the facts you have provided: 

     First, the committee is of the opinion that if the
     attorney/shareholder contacts the corporation as to the
     pending suit he has filed against the corporation, that
     communication is on the "subject of the representation"
     under DR 7-103(A)(1).  The committee assumes that the offer
     to sell stock is related to the pending suit and any
     communication thereupon is also on the subject of the
     representation.

     Second, the committee has consistently opined that an
     attorney may not contact employees of an adverse corporate
     entity within the "control group", i.e., officers, directors
     and key employees, because those persons are recognized to
     be "parties" under the Disciplinary Rule.  Thus, the
     committee opines that it is not permissible for the
     attorney/shareholder to contact officers, directors, or
     employees who occupy a position within the corporation such
     that he or she could commit the organization or corporation
     to specific courses of action.  Upjohn Co. v. U.S., 101
     S.Ct. 677 (1981).  See LEOs #795, #801, #1076; see also LEOs
     #347, #530, #533; cf.  LEO #905.

     Third, the committee has previously opined that consent must
     be obtained from the lawyer representing the parties;
     consent directly from the client would not satisfy the
     requirements of DR 7-l03(A)(l).  See LEO #l507.

     Finally, the question of whether the attorney/shareholder is
     authorized by law, e.g., under the statutes governing
     Virginia corporations, to make such contact raises a legal
     issue the determination of which is beyond the purview of
     the committee.

Additionally, the committee is of the opinion that neither the
fact that the attorney/shareholder is representing himself nor
the claim that the corporation's directors are not receiving
accurate information about the nature of the
attorney/shareholder's claim would constitute an exception to DR
7-103(A)(1). See LEOs #521, #523, #1323. 

Thus, the committee opines that, without the consent of counsel
representing the corporation, the attorney/shareholder may not
contact the officers, directors, or "control group" employees
about the suit he has filed, in his own name, against the
corporation, about his offer to sell stock, or about his request
to have the matter added to the agenda for the shareholders'
meeting.

Committee Opinion
May 11, 1993