Tuesday, December 1, 2009

Do you know? Opposing counsel may have access to your employees during litigation

Businesses often think that once litigation is filed, their employees are off limits to the other side, absent a deposition subpoena. After all, conventional wisdom teaches that it is unethical for an attorney to communicate with someone known to be represented by an attorney without the other attorney’s consent. At least in Ohio, however, such thinking is incorrect and can lead to disastrous results.

According to Advisory Opinion 2005-03 [DOC], an opposing party is only prohibited from speaking to a small fraction of a business’s current employees. 

Communications with Current Employees

  • Opposing counsel is only prohibited from communicating with corporate employees who supervise, direct or regularly consult 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.

  • Opposing counsel may always communicate without the consent of a corporation’s lawyer with any other current employees.

Communications with Former Employees

  • Opposing counsel may communicate with any former employees of the corporation without notification or consent of corporate counsel.

  • An attorney may not, however, communicate if a former employee is represented by his or her own counsel in the matter, or if a former employee has asked the corporation’s counsel to provide representation in the matter.

Thus, the only employees to whom an opposing attorney absolutely cannot speak are current employees whose actions can bind the company or who are actively involved in the litigation decision making. All other employees – past and present – are fair game.

Further, businesses could find themselves defending an offshoot retaliation claim if they try to interfere with an employee who wants to talk to or assist the other side.

Next Tuesday we’ll look at Federal Rule of Civil Procedure 26(b)(3)(C), which gives employers some protections via the discovery of witness statements.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.