Ontario’s Law Society has changed the rules of professional conduct to make it easier for lawyers investigating a case to communicate with employees and agents of the other side. Rule 6.03 (9) used to prohibit lawyers from communicating with employees and agents of any organization whose acts or omissions “may expose the corporation or organization to civil or criminal liability” without the consent of that organization’s lawyer. The new rule has narrowed this consent requirement, so that lawyers for opposite parties are now free to contact most employees or agents of a corporation or other organization, whether or not the organization is represented by legal counsel:
6.03(9) A lawyer retained to act on a matter involving a corporation or organization that is represented by a legal practitioner in respect of that matter shall not, without the legal practitioner’s consent or unless otherwise authorized or required by law, communicate, facilitate communication with or deal with a person
17(a) who is a director or officer, or another person who is authorized to act on behalf of the corporation or organization,
(b) who is likely involved in decision-making for the corporation or organization or who provides advice in relation to the particular matter,
(c) whose act or omission may be binding on or imputed to the corporation or organization for the purposes of its liability, or
(d) who supervises, directs or regularly consults with the legal practitioner
and who makes decisions based on the legal practitioner’s advice.
(9.1) If a person described in subrule (9) (a), (b), (c) or (d) is represented in the matter by a legal practitioner, the consent of the legal practitioner is sufficient to allow a lawyer to communicate, facilitate communication with or deal with the person.
(9.2) In subrule (9), “organization” includes a partnership, limited partnership, association, union, fund, trust, co-operative, unincorporated association, sole proprietorship and a government department, agency, or regulatory body.
Note: the Law Society website does not yet reflect this amendment in its published version of the Rules of Professional Conduct.