Ohio Board Advisory Opinion Op 05-003

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The Supreme Coaurt of Ohio

BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE

65 SOUTH FRONT STREET, 5! 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Withdrawn by Adv.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.
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.
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.

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Op. 2005-3