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June 11, 2012

By: Joel Cohen

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."

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