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Good Morning, Mr. Parker, This is the
Plaintiff's Lawyer Calling...
By:
William B. Leahy, Esq.
As veteran trial lawyers know, most corporate clients
find the courtroom a strange and perilous place. The
prospect that the opposing lawyer might call the
corporate client’s employees or former employees to seek
an interview during the litigation heightens the
discomfort. Under the liberal rules established by the
Ohio courts, that prospect is not an unlikely one.
There are ethical rules that define the circumstances
under which a lawyer can communicate with an opposing
corporation’s employees or former employees during
litigation. This may be puzzling to clients because,
generally, a business person can contact anyone he wants
in transacting his business. A lawyer, however, must
abide by the rules that govern his profession. The
groundrules are different if a lawyer proposes to
contact his opponent’s former employees, as opposed to
its current employees. Under Disciplinary Rule
7-104(A)(1), a lawyer may not communicate with the
following current employees of an opposing corporation:
(1) an employee who supervises, directs or regularly
consults with the corporation’s attorney concerning the
matter at issue; (2) an employee who has the authority
to obligate the corporation with respect to the matter
at issue; and (3) an employee whose act or omission in
connection with the matter at issue may be imputed to
the corporation for purposes of civil or criminal
liability.
DR 7-104(A)(1) allows communication with former
employees without notification to or consent of the
corporation’s attorney so long as: (1) the former
employee is not represented by his or her own counsel in
the matter at issue; (2) the former employee has not
asked the corporation’s counsel to provide
representation in the matter at issue; (3) the opposing
attorney obtains the former employee’s consent to be
interviewed; (4) the opposing attorney informs the
former employee not to divulge any communications that
the former employee may have had with corporate or other
counsel; (5) the opposing attorney fully explains that
he is representing a client adverse to the corporation’s
interests; and (6) the opposing attorney does not
provide an unrepresented former employee with any advice
other than to seek counsel in the matter. See Opinion
2005-3 (Feb. 4, 2005), Opinion 96-1 (Feb. 2, 1996) and
Opinion 90-20 (Aug. 17, 1990), Board of Commissioners on
Grievance and Discipline, Supreme Court of Ohio.
A corporate attorney cannot assert blanket
representation of all current and former employees in
order to frustrate otherwise-permitted communications.
If a lawyer is prohibited from engaging in a
communication with an employee or former employee of an
opponent corporation, he may not circumvent that
prohibition by asking his client or anyone else to
engage in the prohibited communication. DR 7-104(A)(1)
applies to employees of government agencies in the same
manner as it applies to employees of corporations. See
Opinion 92-7, Board of Commissioners on Grievances and
Discipline, Supreme Court of Ohio (Apr. 10, 1992);
Johnson v. Ohio Dept. of Youth Servs., 231 F. Supp.
2d 690 (N.D. Ohio 2002).
Ohio courts have not proven responsive in addressing
alleged violations of these ethical rules. In Smith
v. Cleveland Clinic Found., 151 Ohio App.3d 373
(Ohio Ct. App. 2003), plaintiff filed a wrongful
termination lawsuit against the corporate employer. The
plaintiff’s attorney contacted and interviewed the
opposing corporation’s employees involved in the
decision not to renew the plaintiff’s contract. The
plaintiff’s attorney did not notify the defendant of
these communications. The defendant sought
disqualification of the plaintiff’s attorney for
violating DR 7-104(A)(1). The trial court granted the
defendant’s motion for disqualification but, on appeal,
the appellate court reversed, holding that
disqualification was an improper remedy because the
defendant had failed to show that it was prejudiced.
In Davis v. Washington Co. Open Door, Home, 2000
U.S. Dist. LEXIS 20007 (S.D. Ohio 2000), the Court held
that an attorney was permitted to contact and interview
an opposing corporation’s former employee without
notifying the corporation’s attorney. In United
States v. Beiersdorf-Jobst, Inc., 980 F. Supp. 257
(N.D. Ohio 1997), the Court denied a corporate
defendant’s motion for a protective order that would
have required the plaintiff’s attorney to notify and
obtain consent from the defendant’s attorney before
engaging in ex parte communications with any
former employees, to maintain a list of all former
employees contacted with notes related to such
interviews and to make the list available to the
corporation. In Huther v. Mac Tools, 1993 U.S.
Dist. LEXIS 21234 (S.D. Ohio 1993), as in
Beiersdorf-Jobst, the Court denied a motion for a
protective order to prevent ex parte
communications with an opposing corporation’s former
employees. In Summers v. Rockwell International
Corp., Inc., 1993 U.S. Dist. LEXIS 21173 (S.D. Ohio
1993), the Court refused to impose a “brightline” test
that would prohibit all contact with an opposing
corporation’s former employees.
Therefore, under the ethical rules as promulgated by the
Supreme Court of Ohio, any current employee who was
neither a regular contact with outside counsel, a
corporate decision maker or a “point person” on a
particular dispute may be a prospect for communication
from an opposing attorney. In my experience as a trial
lawyer, it is unusual for an opposing attorney to
attempt to contact a corporate client’s current
employees. If it does occur, however, and if the
contacted employee fails to report the communication,
the case may proceed without any knowledge on the part
of corporate counsel that employees were contacted.
This is perhaps the most troublesome prospect because
without knowing if an employee has been contacted there
is no way for corporate counsel to assess whether his
opponent has engaged in unethical conduct.
It is far more commonplace for an opponent’s attorney to
contact former employees. An opposing attorney’s
wide-ranging ability to interview former employees is a
concern, particularly in circumstances in which an
employee may have left the company under unpleasant
circumstances, affording him incentive to shade the
truth and damage his former employer. It is even more
likely that a former employee will not report an
attempted interview than it is that a current employee
will fail to do so. For this reason, the prospect for
unpleasant surprise in litigation increases. Although
it is most advisable for corporate counsel to attempt to
interview his corporate client’s former employee before
his opponent has the opportunity to do so (assuming he
learns about the former employee first), there is no
guarantee that the former employee will agree to an
interview. Moreover, it is unethical for corporate
counsel to instruct the former employee to decline an
interview from opposing counsel. He must leave it to
the discretion of the former employee to determine
whether he will speak with opposing counsel.
Turning to “the other side of the coin,” your corporate
counsel may interview an opposing corporation’s current
or former employees so long as his conduct comports with
the above-described ethical rules. It is unwise,
however, to “push the envelope.” Indeed, a
determination not to interview an opposing corporation’s
current employees at all is generally the wisest
course. If your corporate counsel attempts an interview
that even arguably violates ethical rules, it can prove
highly damaging not only to the corporate counsel’s
professional standing but also to the corporation’s
prospects in the lawsuit. If there is any possibility
that your corporate counsel may be deemed to have
engaged in unethical behavior, it can prejudice your
standing with the court severely. For these reasons,
supporting ethical behavior by your lawyer is not only
the right thing to do but the practical thing to do.
Although the Ohio courts are more liberal than those in
many states in allowing these communications, for the
most part Ohio lawyers seem unwilling to risk an ethical
violation by engaging in an arguably prohibited
communication. Nonetheless, the prospect that your
opponent may seek to communicate with your present or
former employees should be sufficiently troublesome to
warrant remedial steps. First, you should leave no
stone unturned in disclosing to your attorney the names
and addresses of all current and former employees who
may have relevant information. To the extent possible
and economical, you should authorize your attorney to
interview such persons, particularly including critical
former employees, promptly. Second, your personnel
should be aware of the ethical ground rules and report
any attempted communication by opposing counsel. Third,
your corporate counsel should respond to any arguably
improper communication by an opponent decisively. A
decisive response may take the form of a motion filed
with the Court or a complaint to your opponent’s local
bar association. Before you file a motion or make a
complaint, you should have a high level of confidence
that you are on firm ground. Although Ohio courts seem
reluctant to sanction offending lawyers, responding
decisively to ethical violations should deter your
opponent from further questionable conduct.
Bill Leahy
is a
Shareholder in the Litigation
Practice Group of Buckingham, Doolittle & Burroughs,
LLP.
He can be reached at
wleahy@bdblaw.com or
216.453.4280. Mr. Leahy was assisted in
researching this article by Cleveland Summer Associate Amy Scheurman.
Alternative dispute
resolution: a true alternative
By:
Scott J. Topolski, Esq.
 Alternative
dispute resolution is a formal-sounding term that really
encompasses two procedural mechanisms for bringing closure
to legal disputes between parties. One mechanism is
mediation, and the second is arbitration. Although the
two are different they can often work together.
Mediation is the
more informal of the processes. It involves a neutral
third person, namely a mediator, whose function is to
facilitate or encourage settlement. The mediator has
no decision-making authority. She does not receive,
weigh or rule upon evidence. Her job is simply to
break down what are common communication barriers
between the parties, help move those parties off what
are often “absolute” positions at the outset of the
mediation and, hopefully, get the parties to explore and
think about settlement options that they had not
previously considered.
A good mediator is
more than simply a listener even though that is an
important part of what she does. Similarly, an effective
mediator is not merely a messenger of what each party
wants. A mediator is kind of like a settlement igniter.
At the end of the day, her function is assist the parties
in arriving at a point where they can walk away from a
case with a settlement that each can live with.
Virtually every civil
case in Florida is ultimately assigned to mediation.
There are exceptions for certain categories of cases under
the Rules of Civil Procedure, but the exceptions are
extremely rare. Most courts, as part of an order setting
a case for trial, will simultaneously direct that
mediation take place within a given period of time.
Alternatively, the parties can consent to mediation even
before being ordered to do so by a judge.
Pre-suit mediation is
also not unusual. Some contracts require mediation before
filing a lawsuit or a claim for arbitration. Sometimes,
in anticipation of and in an effort to minimize legal fees
and costs, parties will agree to mediate a dispute before
beginning formal legal action.
Arbitration, by
contrast, is more formal although it is still less formal
than an actual trial in court, in that the rules of
evidence and procedure are usually relaxed. Unlike the
mediator, however, the arbitrator receives, weighs and
rules upon evidence. In addition, the arbitrator has
decision-making authority. Either at the end of the
arbitration or shortly thereafter, the arbitrator will
make a ruling.
There are two types
of arbitration—binding and non-binding arbitration. In
binding arbitration, once the arbitrator makes her
decision, a party’s ability to appeal or challenge that
decision is very limited. By and large, absent unusual
circumstances, each party is going to be bound by the
decision.
Contracts in certain
industries routinely provide for binding arbitration.
Arbitration provisions are common, for example, in
construction contracts. The standard AIA construction
contract contains language that not only requires the
owner and general contract to arbitrate any dispute
between them but may also bind subcontractors and
suppliers of the general contractor to arbitration.
Conversely,
non-binding arbitration is, as the term suggests, just
that, non-binding. A party who wishes to appeal or
challenge an unfavorable award in a non-binding
arbitration can do so. Often, however, there are
consequences. For example, in court-ordered, non-binding
arbitration in Broward County, Florida, if a party rejects
an arbitration award but receives a less favorable
judgment at trial, he will be ordered to pay the other
party’s attorney’s fees.
In cases where a
contract requires the parties to arbitrate rather than
litigate in court, mediation is often still an important
part of the process. In arbitrations before the American
Arbitration Association, mediation before a final
arbitration hearing is the norm. The same is true for
securities arbitrations conducted pursuant to the rules of
the National Association of Security Dealers.
With increasingly
more congested court calendars and a growing backlog of
cases, mediation and arbitration are attractive
alternatives to resolve disputes. Mediation gives the
parties the ultimate power to decide and direct their own
fate. Arbitration, because it is less formal than a trial
and does not ordinarily involve expensive and
time-consuming discovery, can enable a party to be heard
much more quickly than he or she would in state or federal
court.
Scott Topolski is a Partner in the
Litigation Practice Group of Buckingham,
Doolittle & Burroughs, LLP. He
can be reached at
stopolski@bdblaw.com or
561.995.2987.
2005 Snapshot
of Florida Real Estate
B y:
By:
Rana M. Gorzeck, Esq.
The 2005 real estate
market in Florida continues to be rosy. New residents
continue to arrive in Florida at the average rate of 1,000
per day, and there does not appear to be any let up in the
flow. Some of the new residents become part of the
burgeoning workforce; others are retiring baby boomers.
Another set, which may also fall into either of the above
categories, are foreigners from many countries including,
most notably, Canada and South America. These new
residents require, and, as mentioned, are often part of,
the expanding workforce needed to provide the services and
infrastructure of the expanding South Florida community:
new homes, schools, roads, parks, supermarkets,
restaurants, retail centers, hospitals, office buildings,
warehouses, industrial centers, and so on.
All of these factors
create a fast moving real estate market with values
escalating more rapidly than the national norm. The
average sales price of a home in Fort Lauderdale in
November, 2004 was $377,565. This average sales price
represents a 28% increase over 2003. The median
sale price of a home in Fort Lauderdale in November, 2004
was $294,000. This represents a 23% increase over 2003.
Nationally, the average November, 2004 home sales
price was $255,100 and the median home sales price
was $175,000. One can see that the Florida prices are
dramatically higher than their national counterparts.
Bolstering the market is the average 30 year fixed
mortgage, which has remained below 6%, thus enabling
residents to obtain higher priced homes at lower interest
rates.
Another exciting
trend is the revitalization of downtown areas, business
centers and industrial developments. As downtown areas
become more populated, the available real estate
decreases. Gentrification of blighted city areas is on
the increase. Urban areas, such as Atlantic Avenue in
Delray Beach, Florida are in the process of being
beautified and urban market rates are rising. Office
vacancy rates are going from the double digits to the
single digits…for example, in Palm Beach County the 2004
office vacancy rate of 12.2% fell to 9.9%. Similarly,
industrial space development is booming. In Palm Beach
County, 478,500 square feet of industrial space is now
under construction. This will increase the already
existing 44.6 million square feet of industrial space.
Nationally, 2005 is
predicted to be a strong year for home sales, commercial
centers and industrial developments. Florida is not only
expected to follow suit, but is expected to continue to be
one of the fastest growing states in the nation. The
Florida office of Buckingham, Doolittle & Burroughs, LLP
is ready, willing and able to assist persons interested in
acquiring or selling real property in Florida.
Rana Gorzeck is a
Partner in the Real Estate &
Construction Practice Group of Buckingham,
Doolittle & Burroughs, LLP. She
can be reached at
rgorzeck@bdblaw.com or
561.995.2997.
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Business and
Litigation Practice Groups, Associate
Employment & Workers' Compensation Practice Group,
Shareholder
Employment & Workers' Compensation and Health & Medicine
Practice Groups, Associate
Employment & Workers' Compensation and Business Practice
Groups,
Shareholder
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Buckingham, Doolittle & Burroughs, LLP Attorneys
Listed in 2005-2006 Edition of
Ohio super
lawyers Rising Stars®
Buckingham, Doolittle & Burroughs, LLP is pleased to
announce the names of the firm attorneys who have been
recognized as rising stars in their areas of practice
and are listed in the 2005 edition of Super Lawyers
Rising Stars®. Rising Stars are chosen by the most
recent group of Super Lawyers, the top 5 percent of
attorneys in the state. Rising Stars must be under 40
years of age or practicing for less than 10 years. The
Super Lawyers nominate attorneys who they have
personally observed in action - whether as opposing
counsel, co-counsel or other first-hand courtroom
observation. Once the nominations are received, the
attorney led research team reviews the credentials of
the potential Rising Stars and assigns points based on a
set of defined evaluation criteria. The point totals
from the general survey and research process are then
added to arrive at a final tally.
Buckingham attorneys in Super Lawyers Rising
Stars®:
Akron
David J. Hrina,
Corporate Business
Canton
Christopher S. Humphrey ,
Health & Medicine
Cleveland
Mark F. Craig,
Construction/Surety
Paul A. Dzenitis,
Health & Medicine
Grant M. Yoakum,
Real Estate & Construction
Kudos
Paralegals
Complete Certificate of Mastery Program
Congratulations! to Rebekah
Nilges and Nancy Ruggaber
(Buckingham
CantonSM)
and Andre Willis
(Buckingham
BocaSM)
for completing the LexisNexis Paralegal Certificate of
Mastery Program. Recently, they completed the
required coursework in the areas of Initial Case Analysis,
Cite Checking, Locating and Profiling People, and
Corporate, News and Financial Research.
Others who completed all five modules
in the program include Melissa Rinehart (Buckingham
AkronSM),
Annelle Baird,
Kim Beckett,
Ellen Greenberg and
Lisa Vrooman (Buckingham BocaSM), Sheree Amos,
Susan Carr, Jennifer Debro, Dawn Grant,
Karen Lloyd, Debbie Newbauer, and Amy Studer (Buckingham CantonSM),
Richye Jamieson and Coletta
Risko (Buckingham ClevelandSM), and Nell Chambers,
Catherine Hawes, Julianne Hindes, and Sheri Shainfeld
(Buckingham ColumbusSM).
 Gerald B.
Chattman
(Buckingham
ClevelandSM)
was elected
Vice Chair of the National Board of Trustees for the
National Center for Non-Profit Excellence.
 View
Adam W. Heller
(Buckingham ColumbusSM)
on Time Warner cable television's "The Civic Forum."
Leslie Ungar, hostess of The Civic Forum,
discusses The Role of the Sports Agent with
Mr. Heller, Cliff Stoudt (former Youngstown State
University and Pittsburgh Steelers
quarterback), and Frank Stams (former Notre Dame Defensive
End and
Cleveland Browns Line Backer).
You can view the program this week
on Time Warner Cable channel 23 or Digital Time Warner Cable 1111 Local
on Demand.
Saturday, August 27th: 6:00 p.m.
Sunday, August 28th: 9:00 a.m. and
6:00 p.m. You
can also hear the interview on WONE FM 97.5 Sunday at 6:00
a.m. and WAKR AM 1590 at 8:30 a.m. Sunday.
Some clips of the interview will be
available for viewing on
www.bdbsports.com
later this week. Congratulations Adam!
 John P. Slagter (Buckingham
ClevelandSM)
wrote an
article for August, 2005 issue of Properties Magazine,
Inc. The article involved the U.S. Supreme
Court's decision in Kelo v. City of New London.
 Louis F. Wagner
and
Mark J.
Skakun, III
(Buckingham
AkronSM)
recently
authored a book for the Inside the MindsTM
series
entitled, Developing an IP
Strategy
for Your Company. In addition, the chapter Mr.
Wagner and Mr. Skakun contributed was named "An Intelligent Look
at Intellectual Property Law."
Speaking Out
Save the Date for these Upcoming Presentations:
August 30, 2005 -
Barbara A. Knapic
(Buckingham
CantonSM)
will be speaking at a Workers' Compensation Seminar in
Cleveland, Ohio for Lorman Education Services. Also,
on August 31, 2005, Ms. Knapic will present at the
Eaton University session in Cleveland on Ohio Workers'
Compensation.
August 31, 2005 -
Steven A. Dimengo
(Buckingham
AkronSM)
will discuss "Sales and
Use Tax in Ohio," at a Lorman Education Services Seminar
in Independence, Ohio. Also, on October 6, 2005,
Mr. Dimengo will present at the Canton Regional Chamber of
Commerce. He will speak on "New Tax Reform Laws."
In addition, he will be speaking at another Lorman
Education Services Seminar on October 13, 2005.
His topic, "Sales and Use Tax: A Beginner's Basic Course."
On November 9, 2005, he will be speaking at a "Ohio
Sale/Use Tax: Recent Trends, Developments and Planning
Opportunities" Seminar at the University of Akron.
Finally, on November 11, 2005, Mr. Dimengo will
present at a National Business Institute on "Minimizing
Manufacturer Sales and Use Tax Liability in Ohio."
October 6, 2005 -
Scott J. Topoloski
(Buckingham BocaSM)
will be speaking at a "Breakthrough Collection Strategies
in Florida" seminar, sponsored by the National Business
Institute, to be held in West Palm Beach.
October 19-20, 2005 -
Gerald B.
Chattman
(Buckingham
ClevelandSM)
will be presenting at the Center for
Non-Profit Excellence workshops. In addition, Mr. Chattman will be speaking at a National
Business Institute Seminar regarding "Employment Issues
for Non-Profits." He will be in Akron on December
15, 2005 and in Cleveland on December 16, 2005.
Out and About – Recent Presentations:
Business Practice Group
Brent D. Rosenthal
(Buckingham
ColumbusSM)
presented at a National Business Institute Seminar
entitled, Preventing and Resolving Conflicts Arising
from LLC Member Withdrawal. Mr. Rosenthal's
topic was "Drafting Operating Agreements with Business
Succession in Mind."
Adam
R. Van Rees (Buckingham
AkronSM)
was a guest speaker at
the Northeast Ohio Bridal Association's (NOBA) quarterly
meeting. NOBA members consist of florists,
entertainment companies, reception hall owners, and other
wedding vendors. Mr. Van Rees discussed "Simple
Entity Formation in Ohio and General Discussion of Issues
that Effect Small Business Ownership, e.g., Basic
Principles of Copyright, trademark, and employment."
Employment & Workers' Compensation Practice Group
Brett L. Miller (Buckingham
ColumbusSM)
spoke at an Advanced Workers' Compensation seminar
sponsored by Lorman Education Services. His topic
was "What is an injury?" Also, on July 13, 2005,
Mr. Miller presented to the Safety Council of Greater
Columbus on "Real Solutions for Real Costs."
Gerald B.
Chattman
and
Dale A.
Nowak
(Buckingham
ClevelandSM)
presented
at the OSSA (Ohio Staffing Services Association) annual
convention in Columbus. Mr. Chattman addressed
the "Fair Labor Standards Act" and Mr. Nowak discussed
"Workers' Compensation Fraud and Other White Lies."
INFORMATION ON
SEMINARS OR SPEAKERS If
you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a presentation
to your organization, please contact: Lorna
Henderson, Client Relations
Administrator, at
lhenderson@bdblaw.com
or
800.686.2825 ext. 86473. |
