1 / 38

WHAT CAN I DO ABOUT OPPOSING COUNSEL TALKING TO OUR EMPLOYEES?

Understand the rules and guidelines for opposing counsel communication with employees to protect corporate attorney-client privilege. Learn about Iowa Rule of Professional Conduct 32:4.2(a) and practice tips for maintaining privilege.

dhammond
Download Presentation

WHAT CAN I DO ABOUT OPPOSING COUNSEL TALKING TO OUR EMPLOYEES?

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. WHAT CAN I DO ABOUT OPPOSING COUNSEL TALKING TO OUR EMPLOYEES? James H. Gilliam BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-2446 Facsimile: 515-8546 E-mail: gilliam@brownwinick.com

  2. IOWA RULE OF PROFESSIONAL CONDUCT 32:4.2(a)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 to do so by law or a court order

  3. Iowa Code of Professional ResponsibilityDR 7-104(A)(1)

  4. Cram v. Lamson & Sessions Co., Carlon Div., 148 F.R.D. 259 (S.D. Iowa 1993) (former employees) Terra International, Inc. v. Mississippi Chemical Corp., 913 F.Supp. 1306 (N.D. Iowa 1996) (current and former employees)

  5. IOWA RULE OF PROFESSIONAL CONDUCT 32:4.2(a)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 to do so by law or a court order.

  6. I.R.P.C. 32:4.2 Comment 1: [1] This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation

  7. I.R.P.C. 32:4.2 Comment 7: [7] 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

  8. “constituent of the organization” • Officers and Directors • Employees • Non-Employee Agents

  9. “… constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter…”

  10. “…constituent of the organization who…has authority to obligate the organization with respect to the matter…”

  11. “constituent of the organization…whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability”

  12. “… constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter…”

  13. Clear Goal: Protection of Corporate Attorney-Client Privilege

  14. Recognizes various ways each organization may choose to design responsibility for obtaining, providing and reviewing legal services

  15. Practice Tips • Review and Document Legal Service Relationships in Your Organization • Train Corporate Clients on Privilege Issues

  16. “…constituent of the organization who…has authority to obligate the organization with respect to the matter…”

  17. Test Focuses on Scope of Authority

  18. Based on Iowa Rule of Evidence 5.801(d)(2)(D) • Statements which are not hearsay. The following statements are not hearsay: (2) Admission by a party-opponent. The statement is offered against a party and is… (D) a statement by the parties’ agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship

  19. “constituent of the organization…whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability”

  20. Respondeat Superior Liability • Reaches Acts Within Scope of Employee’s Employment

  21. Respondeat Superior Liability (continued) • Does Not Depend on a Further Showing that Employer Directed Acts

  22. Respondeat Superior Liability (continued) • Does Not Require a Further Showing that Employer Knew or Should Have Known of Those Acts

  23. Employees Not Clearly Within Comment 7 Categories…

  24. … Not Automatically “Clients” of Corporate Counsel

  25. … Agreement by Client to Representation Required; Employer Cannot Impose “Agreement”

  26. …Employer May Request an Employee Voluntarily Refrain From Voluntarily Providing Opposing Party InformationI.R.P.C. 32:3.4(f)(1)

  27. FORMER EMPLOYEES

  28. I.R.P.C. 32:4.2 Comment 7 … Consent of the organization’s lawyer is not required for communication with a former constituent…

  29. Ability to Bind Organization to an Evidentiary Admission Ends With Employment…

  30. …Termination of Employment Does Not Terminate the Protection of the Attorney-Client Privilege

  31. I.R.P.C. 32:4.2 Comment 7 … In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization…

  32. Other Former Employee Concerns • Refusal to Appear on Behalf of Former Employer • Refusal to Cooperate with Subpoena • Assists Adverse Parties

  33. Practice Tips • Review Confidentiality Agreements with current employees to ensure privileged communications are covered

  34. Practice Tips • Remind exiting employees of confidentiality provisions of prior agreements

  35. Practice Tips • Cooperation Agreements • Require voluntary cooperation with corporate counsel • Cannot request former employee to refrain from voluntarily providing information to adverse parties, but can require notice to former employer when contacts occur

  36. Practice Tips • Witness Compensation I.R.P.C. 32:3.4 permits payment of a witness’ expenses and lost time

  37. Remedial Actions • Protective Orders • Inadvertent Disclosure • Motions in Limine • Disqualification of Counsel • Sanctions

  38. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.

More Related