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91-3

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  • As counsel for a plaintiff, an attorney may not ethically interview present or former employees of a defendant corporation if:
    • The employees are officers or management employees, or employees whose statements may bind the corporation in a legal sense.
  • Before interviewing present or former employees not within the category as outlined in I (a) above, plaintiff's attorney should:
    • Identify him/herself as an attorney for the plaintiff and identify the litigation so that the individual clearly understands counsel's role. If the prospective witness is privy to a privileged communication with defendant's counsel, plaintiff's counsel should not make inquiry concerning such privileged communication. Subject to the above, current employees may be interviewed concerning facts to
    • Former employees may be interviewed, subject to the limitations set out above concerning privileged communication.
  • Plaintiff's counsel should not sanction the effort of an officer of the plaintiff corporation to prevent employees from talking with attorneys for the defendant if those employees fall within the permissible guidelines set forth above and it is the decision of the employees to talk with defendant's attorneys. A lawyer may not circumvent a disciplinary rule through the actions of another. See DR 1-102 (A) (2).

This page was last modified on Tuesday, April 3, 2012