Imagine that you need to take the deposition of someone who used to be an employee of the Defendant or Plaintiff (a business) in a lawsuit. The business was, and still is, represented by an attorney, and thus, if you were to speak with someone at the business, you would need to communicate through the business’ attorney.
But what about the former employee? On the one hand, that person was, at the time, represented by the business’ attorney. But he or she is no longer an employee of the business. Can you speak with that former employee directly, or must you still communicate solely through the business’ attorney?
Our Chicago business litigation firm at Ellis Legal discusses the nuances of this question below.
You Can Speak Directly With the Former Employee
As a general rule, most courts permit attorneys to contact and communicate with former employees of a company without having to speak through the company attorney.
There are a few reasons for this. The primary reason is that the former employee is no longer working for the company and no longer has the authority to speak for or on behalf of the company.
Some Caveats to the Rule
But it’s not that cut and dry. To the extent that a former employee’s acts or statements could be assumed to be that of the company or to the extent that the former employee still communicates with the business, you may still need to communicate through the business’ attorney. This includes situations where the former employee might still speak for or on behalf of the company or where the former employee continues to act as a formal or informal advisor to the company.
What Information Can You Get?
Even if you do feel like it is OK to communicate with the former employee, that doesn’t mean that you can use that communication to learn about information you otherwise wouldn’t be legally entitled to learn.
For example, in the same way that you couldn’t ask for and receive confidential trade secret information from the company itself, you couldn’t ask for and receive that information through your communication with a former employee.
You also should avoid trying to get the former employee from disclosing information that the employee learned that would have been protected by the company’s attorney-client privilege.
So, asking the former employee about how the company decided to enter into a business deal would be fine. Asking the former employee what the company’s attorney told the company CEO about the business deal would start to approach an ethical boundary.
Never assume that a former employee is, in fact, unrepresented. In many cases, the former employee may be represented personally by the company attorney.
Be Clear Who You Are
When speaking with former employees of a company, even if they are unrepresented, make sure that they know who you are, your role as an attorney, and the matter that you are speaking to them about.
Don’t get in trouble communicating with unrepresented parties. Speak with a Chicago business and legal ethics litigation attorney at Ellis Legal at (312) 967-7629 today.