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WHAT CAN I DO ABOUT OPPOSING COUNSEL TALKING

TO OUR EMPLOYEES?James H. Gilliam

BrownWinick666 Grand Avenue, Suite 2000

Des Moines, IA 50309-2510Telephone: 515-2446Facsimile: 515-8546

E-mail: gilliam@brownwinick.com

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IOWA RULE OF PROFESSIONAL CONDUCT 32:4.2(a)

COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

a) 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

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

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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)

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IOWA RULE OF PROFESSIONAL CONDUCT 32:4.2(a)

COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

a) 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.

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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

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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

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“constituent of the organization”

• Officers and Directors

• Employees

• Non-Employee Agents

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“… constituent of the organization who

supervises, directs, or regularly consults with the

organization’s lawyer concerning the matter…”

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“…constituent of the organization who…has authority to obligate the

organization with respect to the matter…”

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“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”

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“… constituent of the organization who

supervises, directs, or regularly consults with the

organization’s lawyer concerning the matter…”

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Clear Goal: Protection of Corporate Attorney-Client

Privilege

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Recognizes various ways each organization may

choose to design responsibility for obtaining,

providing and reviewing legal services

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Practice Tips

• Review and Document Legal Service Relationships in Your Organization

• Train Corporate Clients on Privilege Issues

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“…constituent of the organization who…has authority to obligate the

organization with respect to the matter…”

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Test Focuses on Scope of Authority

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Based on Iowa Rule of Evidence 5.801(d)(2)(D)

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

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“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”

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Respondeat Superior Liability

• Reaches Acts Within Scope of Employee’s Employment

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• Does Not Depend on a Further Showing that Employer Directed

Acts

Respondeat Superior Liability (continued)

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Respondeat Superior Liability (continued)

• Does Not Require a Further Showing that Employer Knew or Should Have Known of Those Acts

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Employees Not Clearly Within Comment 7

Categories…

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… Not Automatically “Clients” of Corporate

Counsel

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… Agreement by Client to Representation Required; Employer Cannot Impose

“Agreement”

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…Employer May Request an Employee Voluntarily Refrain From Voluntarily

Providing Opposing Party Information

I.R.P.C. 32:3.4(f)(1)

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FORMER EMPLOYEES

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I.R.P.C. 32:4.2

Comment 7

… Consent of the organization’s lawyer is not required for communication with a former constituent…

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

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…Termination of Employment Does Not

Terminate the Protection of the Attorney-Client Privilege

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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…

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Other Former Employee Concerns

• Refusal to Appear on Behalf of Former Employer

• Refusal to Cooperate with Subpoena

• Assists Adverse Parties

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Practice Tips

• Review Confidentiality Agreements with current employees to ensure privileged communications are covered

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Practice Tips

• Remind exiting employees of confidentiality provisions of prior agreements

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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

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Practice Tips

• Witness Compensation

I.R.P.C. 32:3.4 permits payment of a witness’ expenses and lost time

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Remedial Actions

• Protective Orders

• Inadvertent Disclosure

• Motions in Limine

• Disqualification of Counsel

• Sanctions

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Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (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.