Inquiry: Dated December 3, 1973.
When both counsel for the plaintiff and counsel for a defendant corporation advise the court at final pretrial conference that a specified witness who is a rank-and-file employee of defendant corporation will be called by both plaintiff and defendant and this person is subpoenaed as a witness by the plaintiff, is it ethical for plaintiff's lawyer to interview this witness before putting him on the stand?
Opinion: Yes. This would be ethical even if the witness were not subpoenaed by the plaintiff. Subject to the provisions of DR 7-104(A) (1), prohibiting a lawyer from communicating on the subject of litigation with a party he knows to be represented by a lawyer in that matter, a lawyer may properly interview any person not a party to the litigation who he believes to have knowledge of relevant facts. Interviewing a rank-and-file employee of an adverse corporate party is not communicating with an adverse party within the meaning of DR 7-104(A) (1). Witnesses do not "belong" to any party.
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