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Abstract: 

As confidential witness (“CW”) allegations have become a mainstay of securities class action litigation, ethical and other issues related to communications with potential CWs have proliferated. Ethical rules, including rules related to communications with adverse parties and third parties, govern both with whom an attorney may communicate, as well as certain substantive aspects of those communications. To avoid potential disciplinary action or litigation sanctions, lawyers for both plaintiffs and defendants should review their jurisdiction’s rules before contacting a potential CW or hiring a private investigator to do so.

Keywords: Represented Witnesses; Unrepresented Witnesses; Use of Private Investigators; ABA Model Rules of Professional Conduct: Rules 4.2, 4.3, 4.4

Affiliations:  1: Sullivan & Cromwell LLP; 2: Sullivan & Cromwell LLP.