Ohio Board Advisory Opinion Op 90-020

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 90-20
Issued August 17, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
[Modified- by Opinion 96-1 on Feb. 2, 1996;by Opinion 2005-3 on Feb. 4, 2005]
SYLLABUS: When litigation is contemplated or after a lawsuit is filed a lawyer representing an
interest adverse to a corporation must notify opposing counsel when seeking to interview
management employees, employees who can speak for the corporation and employees whose
opinions form the basis of management decisions. Other present and all former employees may be
interviewed ex parte; notification may be required before interviewing former employees who were
privy to privileged communications with the corporation's lawyers or employees whose conduct
gives rise to the claim against the corporation. In all interviews, the lawyer must be clearly
identified to the interviewee.
OPINION: We have before us your request for an opinion on the fo11owing questions:
1. Under what circumstances may an attorney who is contemplating
filing a lawsuit against a corporation or other business entity
interview the past and/or present employees of the corporation or
other business entity while investigating the facts of the case?
2. Is there any distinction made between classes of employee, i.e.
management vs. laborers?
3. Does it matter if the interviewee is a past or present employee?
4. Can any interview be performed without the presence of counsel
or notifying management?
5. What sanctions are available against the attorney or law firm who
so investigates?
You have also indicated interest in the same questions where a lawsuit or action has commenced.

Op. 90-20 2
In regard to your last question, any violation of the Disciplinary Rules may lead to sanctions
determined on a case-by-case basis. Improper direct contact with an opposing party may also lead
to disqualification in a particular case. This Board, however, does not consider specific, potential
sanctions or address primarily legal questions. Therefore, this opinion will not further discuss
question 5.
The controlling rule is DR 7-104 (A):
During the course of his 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 knows to be represented by a lawyer in the matter
unless he has 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 client.
Interviews Before Suit
This rule may bar interviews with an opposing party's current or former employees, either before or
after a lawsuit has been filed, depending on the individual circumstances of each case. Prospective
parties are entitled to protection from deception and overreaching by a lawyer interviewing them.
R. Underwood & W. Fortune, Trial Ethics 179 (Little, Brown 1988). When interviewing someone
prior to the filing of a lawsuit, the lawyer or investigator must therefore clearly state his or her
identity and the client's identity. Id. at 180. If the person being interviewed is represented by
counsel, then that counsel must consent to the interview.
The American Bar Association agrees that a lawyer may properly interview and take a statement
from a potential defendant, not yet represented by counsel, if the attorney advises the person he or
she is conducting the interview as counsel for the plaintiff. ABA Committee on Ethics and
Professional Responsibility Informal Op. 908 (1966). The attorney or investigator must carefully
avoid misleading the interviewee. ABA committee on Ethics and Professional Responsibility
Informal Op. 670 (1963).

Op. 90-20 3
The Second Circuit Court of Appeals held a corporation's lawyers in interrogation of an employee
of the corporation without informing the employee that a suit had already been filed against him by
the corporation to be "inappropriate and not to be encouraged" in Grant v. Haines, 531 F.2d 671
(1976).
Interviews After Suit
Distinctions between classes of employees or past and present employees in terms of who may be
interviewed without notifying opposing counsel occur most often after a lawsuit has been filed.
Because DR 7-104 (A) (1) prohibits interviews with unrepresented parties, the question becomes
who is considered a party when your opponent is a corporation?
We will begin by discussing whether current employees of the corporation are parties to an action
against the corporation. If an employee can "speak for" the corporation or commit the corporation
to a position, then he or she is considered a party under DR 7-104 (A) (1). See, e.g., ABA
Committee on Ethics and Professional Responsibility Informal Op. 1410 (1978), Ohio State Bar
Association Informal Op. 81-5 (1981). This prohibition is "necessary in order to preserve the
proper functioning of the attorney-client relationship and to shield the adverse party from improper
approaches." ABA Committee on Ethics and Professional Responsibility, Informal Op. 1498
(1983).
Further, it is "unequivocal that you may not talk to anyone currently employed by an adverse party
at the managerial level." Wyeth, Talking to the Other Side's Employees and Ex-Employees, 15
ABA Litigation 9 (Summer 1989). The anticontact provision protects anyone in the "control
group," which includes top management who make final decisions and employees whose advisory
roles to management are such that a top decision cannot be made without their opinions or advice
or whose opinions form the basis of any final decision. ABA/BNA Lawyers Manual on
Professional Conduct 701:304 (1988).
Finally, opposing counsel is also precluded from contacting a current employee whose act or
omission in connection with the controversy may be imputed to the organization for purposes of
civil or criminal liability or whose statement may constitute an admission on the part of the
organization. ABA Model Rule of Professional Conduct, 4.2 Official Commentary (1983).
Although not adopted in Ohio, we concur with this commentary to Model Rule 4.2.

Op. 90-20 4
Therefore, it is permissible to interview a current employee who is not involved with the
controversy in litigation, not able to bind the corporation and not a managerial employee without
notifying the corporation's counsel. However, "it seems reasonable for counsel to ask for
permission to contact employees in close cases." R. Underwood & W. Fortune, Trial Ethics 184
(Little, Brown 1988). Moreover, if the employee is represented by counsel, then that counsel must
consent to the interview.
Although former employees are no longer able to bind the corporation, you cannot always assume
that it is proper to interview an ex-employee without advising opposing counsel. Wyeth, Talking to
the Others Side's Employees and Ex-Employees, 15 ABA Litigation 11 (Summer 1989). As
Wyeth's article points out, there are two types of former employees who may be considered parties
under DR 7-104 (A): 1) employees who were privy to privileged communications with the
corporation's lawyers about the case; and 2) employees whose conduct gives rise to the claim
against the corporation. Id. Interviewing these types of former employees may require the
permission of the corporation's counsel, depending upon the circumstances of the particular former
employee and the case involved.
Determining whether the ex-employees can be interviewed ex-parte on a case-by-case basis can be
difficult. Wyeth recommends "one way to avoid disqualification is to seek an order in advance
permitting you to interview certain classes of current or former employees." Wyeth, Talking to the
Others Side's Employees and Ex-Employees, 15 ABA Litigation 59 (Summer 1989).
In conclusion, it is our opinion 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 act or omission in connection with the controversy may be imputed
to, or an admission of, the corporation. Most other present employees and most former employees,
who are not themselves represented by counsel, may be interviewed ex parte. However,
notification of the corporation's counsel may be required before interviewing former employees
who were privy to privileged communications with the corporation's counsel or employees whose
conduct gives rise to the claim against the corporation. In all instances, a lawyer conducting
interviews must carefully avoid misleading the interviewees.
This is an informal, non-binding advisory opinion based upon the Code of Professional
Responsibility and limited to the questions asked.