Ohio Board Advisory Opinion Op 96-001

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 96-1
Issued February 2, 1996
[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which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: 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.
OPINION: This opinion addresses ex parte communications between attorneys and
former employees of a corporation.
While representing a client in matters adverse to a corporation, is it proper
for an attorney to communicate on the subject matter of representation
with former employees of the corporation without notification or consent
of corporate counsel?
Ex parte communication with current and former employees was addressed by this Board
in Opinion 90-20. In Opinion 90-20 the Board advised that
[I]t 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

Op. 96-1 2
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. [Emphasis added].
Thus, the Board's restrictions as to ex parte communication with current employees were
clearly defined in Opinion 90-20. Attorneys were required to notify the corporate counsel
when seeking to interview current employees in any of the following categories:
management employees, employees who "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 be an admission of the
corporation.
However, the Board's restrictions as to ex parte communication with former employees
were less clear. Because the Board said notification "may" be required to interview
certain former employees, there has been uncertainty as to when notification is required
and whether notification also implies that consent is needed. For this reason, the Board
reconsiders the issue of ex parte communication with former employees of a corporate
employee.
The ethical rule that governs communication with adverse parties is DR 7-104 of the
Ohio Code of Professional Responsibility.
DR 7-104 COMMUNICATING WITH ONE OF ADVERSE INTEREST
(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 client.
An explanation of the underlying purpose of DR 7-104 is found in EC 7-18: "The legal
system in its broadest sense functions best when persons in need of legal advice or
assistance are represented by their own counsel. For this reason a lawyer should not
communicate on the subject matter of the representation of his [her] client with a person

Op. 96-1 3
he [she] knows to be represented in the matter by a lawyer, unless pursuant to law or rule
of court or unless he [she] has the consent of the lawyer for that person."
The ABA Model Rule 4.2 is similar to DR 7-104(A), with the exception that in August
1995 the word "party" was replaced by the word "person."
RULE 4.2 Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject
of the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
The Comment to this rule sets forth categories of employees within an organization with
whom ex parte communication would be improper, but makes no reference to former
employees. In pertinent part, the Comment states that
In the case of an organization, this Rule prohibits communications by a
lawyer for another person or entity concerning the matter in representation
with persons having a managerial responsibility on behalf of the
organization, and with any other person whose act or omission in
connection with that matter 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.
Twice, the ABA ethics committee has advised that Model Rule 4.2 does not prohibit
contacts with former employees of a represented corporation, even if those former
employees were in one of the categories in which communication was prohibited while
employed. See ABA, Comm. on Ethics and Professional Responsibility, Formal Op. 95-
396 (1995) f.n. 47 and Formal Op. 91-359 (1991). Albeit, these opinions preceded the
change in the rule's language from "party" to "person." But if a former employee was not
considered a "party" represented by corporate counsel under the old rule, it follows that
the former employee would not be considered a "person" represented by corporate
counsel under the new rule.

Op. 96-1 4
Similar to the ABA approach, some states permit contact with all former employees of a
corporation without the permission of corporate counsel, but most add cautionary
language that it is proper so long as the former employee is not represented in the matter
by counsel and the attorney does not inquire into matters that may be privileged. See
Alaska Bar Ass'n, Op. 91-1 (1991); Nebraska State Bar Ass'n, Op. 94-5 (undated),
Oregon State Bar, Op. 1991-80 (1991); Philadelphia Bar Ass'n, Op. 93-9 (1993). One
state cautions that the former employee must consent to the interview after the lawyer has
fully explained the lawyer's purpose. State Bar of Georgia, Op. 94-3 (1994). Other states
caution that a lawyer may not state or imply that he or she is disinterested. Maryland
State Bar Ass'n, Op. 90-29 (1990), Mississippi State Bar, Op. 215 (1994), State Bar of
North Dakota, Op. 92-13 (1992), Ethics Advisory Panel of Rhode Island SupCt, Op. 91-
74 (1991).
In contrast, other states maintain the view that there is a category of former employees
with whom ex parte contact is improper. These states prohibit ex parte communication
with former employees whose acts or omissions in connection with the matter may be
imputed to the corporation. Kansas Bar Ass'n, Op. 92-7 (1992), Advisory Comm. of
Professional Ethics, New Jersey SupCt, Op. 668 (1992) (advising that it is also improper
if the former employee has access to litigation confidences), South Carolina Bar, Ops. 94-
25 (1994) and 92-31 (1992).
In Ohio, the issue has received attention from two federal courts. In Kitchen v. Aristech
Chemical, 769 F. Supp. 254 (S.D. Oh. 1991), the court rejected defendant's motion to
disqualify plaintiff's counsel for ex parte communication with the former employee of a
defendant chemical company, but the court did not resolve the issue of whether the
communication violated DR 7-104 because in the court's view the conduct was not so
egregious to warrant disqualification, even assuming arguendo that it did violate the rule.
Kitchen, 769 F. Supp at 258. In Summers v. Rockwell International Corp., No. C-2-92-
301, slip op. at 6 (U.S.D.C., S.D. Ohio Apr. 9, 1993), the magistrate chose a case-by-case
approach, rejecting the defendant's request for adoption of a "bright-line" test prohibiting
ex parte contact with all former employees. Instead, the magistrate permitted ex parte
contact with former employees under conditions that the plaintiff's counsel would provide
written notice making certain disclosures to former employees in advance of the interview
and obtain the employees' consent. Summers, slip op. at 6-11.

Op. 96-1 5
In construing DR 7-104(A), this Board's view is that notification and consent of corporate
counsel is not required prior to interviewing a former employee of a corporation. A
former employee is no longer part of the corporation and no longer speaks for the
corporation. A former employee may have interests that differ from the corporation. A
former employee may have obtained his or her own counsel in the matter or may have
chosen to represent himself or herself. For these reasons, a former employee of a
corporation is not considered a party for purposes of the rule.
Therefore, this Board is modifying the view expressed in Opinion 90-20 that notification
may be required before interviewing former employees who were privy to privileged
communications with the corporation's lawyers and former employees whose conduct
gives rise to the claim against the corporation. Such advice leaves uncertainty among the
bar and may at times unnecessarily impede discovery in legal matters. It is the Board's
view that ethical concerns are better addressed by establishing the proper boundaries
within which the communication may occur.
In conclusion, this Board advises that 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.
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.