I am in litigation and a former employee of a defendant’s corporation walked into my office one day and indicated they had incriminating material. What am I to do?
Samuel C. Stretton.
If an employee of a defendant corporation walks into one’s office when litigation is ongoing, the best thing to do is not to speak to them, at least initially. The starting point is Rule 4.2 of the Rules of Professional Conduct. That rule very clearly states a lawyer cannot communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer in the matter unless there is consent. Reading the comments to the rule, it clearly indicates that also applies to employees of the corporation who can bind the corporation. Comment 7 to Rule 4.2 states as follows: “In a case of a represented organization, this rule prohibits communication with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or who 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 the purpose of the civil or criminal case.”
