OHBPC February 4, 2005

Which current and former employees of a represented corporation can an opposing lawyer contact without corporate counsel's consent?

Short answer: The opinion concluded that counsel adverse to a corporation may, despite a blanket-representation assertion by corporate counsel, contact certain employees: DR 7-104(A)(1) bars contact with current employees who supervise or consult with corporate counsel, can bind the corporation, or whose acts may be imputed to it, but former employees may generally be contacted on the subject matter unless they have their own counsel. It modified Opinions 90-20 and was later withdrawn in 2016.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Currency note

The Board withdrew this opinion on August 5, 2016 in Opinion 2016-5; it is retained here for research only and is not current guidance. The opinion was issued in 2005, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007), and interprets former DR 7-104(A)(1). The current rule is Ohio Prof. Cond. R. 4.2. Treat this page as historical context. Verify against current rules and the superseding opinion before relying on any specific requirement mentioned here.

Plain-English summary

The Board addressed which employees of a corporation an opposing lawyer may contact when the corporation's lawyer asserts blanket representation of the corporation and all its current and former employees. The Board concluded that counsel representing an interest adverse to the corporation may communicate with certain current and former employees without the consent of corporate counsel, notwithstanding that blanket assertion.

For current employees, the Board applied DR 7-104(A)(1): when the corporation is known to be represented on a matter, the rule bars contact without corporate counsel's consent with an employee who supervises, directs, or regularly consults with the corporation's lawyer about the matter, who has authority to obligate the corporation as to the matter, or whose act or omission in the matter may be imputed to the corporation for civil or criminal liability. Contact with current employees outside those categories is not barred. This modified Opinion 90-20. For former employees, the Board concluded that an attorney may communicate on the subject matter of the representation with former employees without notifying or obtaining the consent of corporate counsel, within stated boundaries, including that the attorney may not communicate ex parte with a former employee who is represented by his or her own counsel in the matter.

Common questions

Q: Can an opposing lawyer talk to a company's former employees without going through corporate counsel?

A: Generally yes. The opinion concluded an adverse attorney may communicate with former employees on the subject matter without corporate counsel's consent, unless the former employee has his or her own counsel in the matter. The Board withdrew the opinion in 2016.

Q: Which current employees are off-limits under DR 7-104(A)(1)?

A: Per the opinion, those who supervise, direct, or regularly consult with corporate counsel about the matter, who can obligate the corporation as to the matter, or whose acts may be imputed to the corporation for liability.

Q: Does a blanket claim that corporate counsel represents everyone control?

A: No. The opinion concluded the adverse lawyer may still contact employees outside the protected categories despite a blanket-representation assertion.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 7-104(A)(1), the anti-contact rule barring communication with a represented party without that party's lawyer's consent, as applied to a corporation's current and former employees. The current analogue is Ohio Prof. Cond. R. 4.2 (Model Rule 4.2). The opinion modified Opinion 90-20 and was withdrawn in Opinion 2016-5.

Citations and references

Rules of Professional Conduct:

Former Ohio Code of Professional Responsibility DR 7-104(A)(1)
Current analogue: Ohio Prof. Cond. R. 4.2 (Model Rule 4.2)

Other opinions cited:

Ohio Op. 90-20: modified by this opinion

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-05-003.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                   OFFICE OF SECRETARY




                             OPINION 2005-3
                           Issued February 4, 2005

            Withdrawn by Adv. Op. 2016-5 on August 6, 2016

SYLLABUS: Counsel representing an interest adverse to a corporation may
communicate without the consent of a corporation’s lawyer with certain current
employees and former employees of the corporation, even when corporate
counsel asserts blanket representation of the corporation and all its current and
former employees.

As to communication with current employees of a corporation, these guidelines
apply. When a corporation is known to be represented with respect to a
particular matter, DR 7-104(A)(1) prohibits communications without the consent
of corporate counsel with an employee of the corporation who supervises, directs
or regularly consults with the corporation’s lawyer concerning the matter, or has
authority to obligate the corporation with respect to the matter, or whose act or
omission in connection with the matter may be imputed to the corporation for
purposes of civil or criminal liability. This modifies Opinion 90-20.

As to communication with former employees of a corporation, these guidelines
apply. While representing a client in a matter adverse to a corporation, an
attorney may communicate on the subject matter of the representation with
former employees of the corporation without notification or consent of corporate
counsel. Such communication would not violate DR 7-104(A)(1) when conducted
within the following boundaries. An attorney may not communicate ex parte if a
former employee is represented by his or her own counsel in the matter, unless
that counsel consents. An attorney may not communicate ex parte if a former
employee has asked the corporation's counsel to provide representation in the
matter, unless that counsel consents. An attorney must obtain the consent of the
former employee to the interview. An attorney must inform the former employee
not to divulge any communications that the former employee may have had with
corporate or other counsel. An attorney must fully explain to the former
employee that he or she represents a client adverse to the corporation. Under DR
7-104(A)(2), an attorney must not give advice to the unrepresented former
employee other than advice to seek counsel in the matter.

OPINION: This opinion addresses an attorney’s communication, without the
consent of a corporation’s lawyer, with current and former employees of a

Op. 2005-3 2

corporation when opposing corporate counsel asserts blanket representation of
the employees and the corporation.

  Is it proper for counsel who represents an interest adverse to a
  corporation to communicate without consent of the corporation’s
  counsel with certain current and former employees of the
  corporation, when the corporate counsel asserts blanket
  representation of the corporation and all current and former
  employees?

DR 7-104 is the anti-contact rule in the Ohio Code of Professional Responsibility.

  DR 7-104

  (A) During the course of his [her] representation of a client a lawyer shall
      not:

  (1) Communicate or cause another to communicate on the subject
      of the representation with a party he [she] knows to be
      represented by a lawyer in that matter unless he [she] has the
      prior consent of the lawyer representing such other party or is
      authorized by law to do so.

  (2) Give advice to a person who is not represented by a lawyer,
      other than the advice to secure counsel, if the interests of such
      person are or have a reasonable possibility of being in conflict
      with the interests of his [her] client.

EC 7-18 broadly explains the reason for the anti-contact rule: “The legal system
in its broadest sense functions best when persons in need of legal advice or
assistance are represented by their own counsel.” In practice, the rule protects
represented clients from overreach by opposing counsel who might elicit
information harmful to the client and protects unrepresented persons from
receiving advice that might not be in their best interest. And, as explained in
ABA, Formal Opinion 95-396 (1995), “the anti-contact rules provide protection of
the represented person against overreaching by adverse counsel, safeguard the
client-lawyer relationship from interference by adverse counsel, and reduce the
likelihood that clients will disclose privilege or other information that might
harm their interests” (citing Roger C. Cramton & Lisa K. Udell, State Ethics Rules
and Federal Prosecutors: The Controversies Over the Anti-Contact and
Subpoena Rules, 53 U. Pitt. L. Rev. 291, 325 n. 4 (1992)).

Blanket representation

Corporate counsel’s assertion of blanket representation of the corporation and all
its corporate employees is bluster. It is inappropriate. First, a unilateral
declaration by a corporation’s counsel that he or she represents all current and
former employees does not make it so. Second, such blanket representation of a

Op. 2005-3 3

corporation and all its current and former employees would in many instances be
fraught with impermissible conflicts of interest for the corporate lawyer.

The Board’s view is that a lawyer representing a corporation may not prohibit
contact with all employees by asserting blanket representation of the corporation
and all its current and former employees. A similar view is expressed by the ABA,
Committee on Ethics and Professional Responsibility: “[A] lawyer representing
the organization cannot insulate all employees from contacts with opposing
lawyers by asserting a blanket representation of the organization.” ABA, Formal
Op. 95-396 (1995).

[For this Board’s view as to blanket instructions to government employees see
Opinion 92-7 advising that “[a] government department or agency or its counsel
should not give blanket instructions to all its employees not to communicate with
counsel representing an adverse party unless the government attorney is
present.”) Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 92-7 (1992).]

Yet, some current employees of a corporation are off limits—they are protected by
DR 7-104(A)(1) from contact by opposing counsel without corporate counsel’s
consent. The Board has provided guidance in Opinions 90-20 (1990) and
Opinion 96-1 (1996) as which employees are protected by the rule. This advice is
reviewed below.

Current employees

Certain current employees of a corporation are considered represented by
corporate counsel and are shielded by the anti-contact rule from contact by
opposing counsel without consent of corporate counsel. Defining the group of
protected employees helps attorneys to comply with DR 7-104.

In Opinion 90-20 the Board advised that “when litigation against a corporation is
contemplated or after a lawsuit is filed, a lawyer representing an interest adverse
to the corporation must notify the corporation’s counsel when seeking to
interview management employees, employees who can ‘speak for’ or bind the
corporation, employees whose opinions form the basis of management decisions
and employees whose acts or omission in connection with the controversy may be
imputed to, or an admission of, the corporation.” Ohio Sup.Ct., Bd. Commrs.
Grievances & Discipline, Op. 90-20 (1990).

In Formal Opinion 95-396, the ABA, Committee on Ethics and Professional
Responsibility advised that “[w]hen a corporation or other organization is known
to be represented with respect to a particular matter, the bar applies only to
communications with those employees who have managerial responsibility, those
whose act or omission may be imputed to the organization, and those whose
statements may constitute admissions by the organization with respect to the
matter in question.” ABA, Formal Op. 95-396 (1995).

More recently, a 2002 amendment to the comment to ABA Model Rule 4.2 (the
anti contact rule) provides further clarity as to off limits employees.

Op. 2005-3 4

  In the case of a represented organization, this Rule prohibits
  communications with a constituent of the organization who
  supervises, directs or regularly consults with the organization’s
  lawyer concerning the matter or has authority to obligate the
  organization with respect to the matter or whose act or omission in
  connection with the matter may be imputed to the organization for
  purposes of civil or criminal liability.

ABA, Model Rule 4.2, comment 7.

The Board finds the language of comment 7 to Model Rule 4.2 to illuminate
which employees are protected by the anti-contact rule. Thus, while the past
language of Opinion 90-20 has served well, the language of the Model Rule 4.2
comment 7 may provide more clarity to Ohio attorneys. Thus, the Board modifies
Opinion 90-20 by now advising that when a corporation is known to be
represented with respect to a particular matter DR 7-104(A)(1) prohibits
communications with an employee of the corporation who supervises, directs or
regularly consults with the corporation’s lawyer concerning the matter, or has
authority to obligate the corporation with respect to the matter, or whose act or
omission in connection with the matter may be imputed to the corporation for
purposes of civil or criminal liability.

Former employees

Former employees, who have not obtained counsel in a matter, may be
interviewed without consent of the corporation’s counsel.

In Opinion 96-1 (1996), this Board advised:

  While representing a client in a matter adverse to a corporation, an
  attorney may communicate on the subject matter of the
  representation with former employees of the corporation without
  notification or consent of corporate counsel. Such communication
  would not violate DR 7-104(A)(1) when conducted within the
  boundaries set forth. An attorney may not communicate ex parte if
  a former employee is represented by his or her own counsel in the
  matter, unless that counsel consents. An attorney may not
  communicate ex parte if a former employee has asked the
  corporation's counsel to provide representation in the matter,
  unless that counsel consents. An attorney must obtain the consent
  of the former employee to the interview. An attorney must inform
  the former employee not to divulge any communications that the
  former employee may have had with corporate or other counsel. An
  attorney must fully explain to the former employee that he or she
  represents a client adverse to the corporation. Under DR 7-
  104(A)(2), an attorney must not give advice to the unrepresented
  former employee other than advice to seek counsel in the matter.

Op. 2005-3 5

See also ABA, Formal Op. 91-359 (1991) advising that “it is the opinion of the
Committee that a lawyer representing a client in a matter adverse to a corporate
party that is represented by another lawyer may, without violating Model Rule
4.2, communicate about the subject of the representation with an unrepresented
former employee of the corporate party without the consent of the corporation’s
lawyer.”

Conclusion

Counsel representing an interest adverse to a corporation may communicate
without the consent of a corporation’s lawyer with certain current employees and
former employees of the corporation, even when corporate counsel asserts
blanket representation of the corporation and all its current and former
employees.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to
prospective or hypothetical questions regarding the application of the
Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code
of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.

Op. 2005-3 6

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