'Soliciting' a Corporation's Former Employees

When a corporation, X, is either sued civilly or investigated by the authorities, in actuality X’s attorney strives to shut down the adverse attorney’s capacity to obtain potentially harmful information, such as trade secrets and privileged or confidential information, from X’s personnel. As discussed herein, X’s former personnel are another—albeit more complicated—target to be protected by X’s attorneys. How can X’s defense counsel ensure that they will be able, for example, to represent X’s past and present employees at a deposition? Using the “no contact” rule, X’s attorneys strive to create a roadblock that will inhibit the adverse attorneys from directly communicating with X’s current and former personnel. This roadblock commonly manifests in the form of attorney representation, because such representation brings with it the protection of Rule 4.2 of the New York Rules of Professional Conduct, “Communication With Person Represented by Counsel.” Specifically, Rule 4.2(a) provides:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law (emphasis added).¹

By limiting the scope of its protection to a “party” that the lawyer knows to be represented, Rule 4.2(a) ostensibly shies away from taking the maximally restrictive stance on such communications. By contrast, Comment 1 to Rule 4.2 suggests that the rule may in fact provide such conversations with additional cover, stating that a lawyer cannot communicate with a “person” known to be represented by an attorney.² Likewise, as explained in the New York City Bar’s Formal Ethics Opinion 2010-2, “Obtaining Evidence From Social Networking Websites,” the term “party” in Rule 4.2 “is generally interpreted broadly to include represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties.”³

Current Corporate Employees