Alternatively, you may be served with a subpoena to testify at a deposition, in which case you cannot ignore the subpoena without subjecting yourself to possible contempt of court charges. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . 2005-2023 K&L Gates LLP. Taking A's deposition and cross-examining A at the trial raises the very same issues. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. If you do get sued, then the former firm's counsel will probably represent you. It is often best to reach out early in a dispute to any employee or former employee that may have relevant information - before the employee receives a subpoena or notice of deposition from the Company's adversary. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . The following year, in Davidson Supply Co. v. Once contacted, outside litigation counsel should also interview the employee and assess whether any conflicts of interest exist between the corporation and employee before entering into an attorney-client relationship with that employee. Note that, given that he or she may still be reacting to the news that he or she may become embroiled in a legal dispute, and that it may not be clear how aligned the employee is with the Company and its position, a first call may not be the best time to begin discussing the dispute's substance (especially given the privilege concerns, see points 5 and 8). 6. Verffentlicht am 23. Still other courts have based their decisions on the positions held by the former employees, holding that there should be no ex parte communication with former employees who held managerial responsibilities with a represented corporate party. Copyright 2023 MH Sub I, LLC dba Internet Brands. Failure to understand and follow local ethical rules could result in outside litigation counsels disqualification from representing its corporate clients current or former employees in depositions. Distinguished: An excellent rating for a lawyer with some experience. confidential relationship is or should be formed by use of the site. Enter your Association of Corporate Counsel username. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? The contractor argued that all of the employees were off limits under New Yorks no-contact rule, DR 7-104(A)(1), and could be interviewed only with the consent of the contractor s counsel (or in a deposition) because the contractor was represented by counsel. . Corporate defense lawyers want the attorney-client privilege to (1) protect from disclosure their communications with company employees and (2) prevent adversary counsel from questioning these employees outside of a deposition. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? 1986); Camden v. State of Maryland, 910 F.Supp. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. Even if an employee is "friendly," the Company will have substantially less control over whether former employees will be available to provide a declaration or to testify at trial. Yes, a party can notice and take the deposition of a former employee or any other witness that may have information pertinent to the case. Your access of/to and use She is a member of the Ohio Supreme Courts Commission on Professionalism, a former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of. more likely to be able to represent the corporation well. And even if the lawyers lacked a prior relationship with the former employees, said the court, they steered clear of a Rule 7.3 violation because they did not solicit for pecuniary gain. Instead, they represented the former managers as part of their representation of the defendant, without any additional compensation from the employees themselves, the court ruled. [Emphasis added.]. Give the deposition. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. Email us at nylerhelp@newyorklegalethics.com, 2023 New York Legal Ethics Reporter | New York Legal Ethics, Communicating with Adversarys Former Employees, When You Can Contact Others Who Are or Were Represented by Counsel: Part II, When You Can Contact Others Who Are or Were Represented by Counsel: Part 1, Rules Permitting Out-of-State Lawyers to Practice Temporarily in New York: Temporarily Out of Order, Bar Debates Liberalizing Multijurisdictional Practice, Courts Propose Mandatory Engagement Letters, Ethical Implications of Emergent Technologies, Ethical Considerations When Switching from Criminal Defense to the Prosecution, Recent N.Y. Ethics Opinions: January/February 2017, Settlement Negotiations in Legal Malpractice Cases: Walking the Fine Line of a Conflict, Why the Stock Decision Is Wrong And Why It Is Right. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Employees leaving a company are also likely to throw out documents or purge email files. h24T0P04R06W04V05R04Q03W+-()A For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Preparing CRCP 30(b)(6) Deposition . LEXIS 6198 (D. Conn. 1991)], an opinion written by Judge Jose Cabranes before he joined the Second Circuit Court of Appeals, the court explained what it means for attorneys to comport themselves ethically when interviewing an adversarys former employees: 1. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. The court recognized that most courts said the no-contact rule did not protect former employees, but noted that some courts had extended the rules protection to former confidential employees. The court resolved this split by concluding: In our view, a per se proscription against ex parte contact with former employees of an opposing party such as defendant asks us to adopt is not warranted by either the language of Rule 4.2 or by any court decision interpreting it. View Job Listings & Career Development Resources. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. The Court also declines to disqualify Pacific Life's counsel from representing Daragh O'Sullivan at his deposition because it does not find that Pacific Life's counsel (either its in-house attorney or its outside attorney) improperly solicited O'Sullivan. Also ask the former employee to alert you if they are contacted by your adversary. Report Abuse Alena Shautsova Partner at Law Offices of Alena Shautsova no peer reviews 100% 2 client reviews Contact 917-475-0420 website Answered on Sep 12th, 2013 at 1:21 PM Depending on the claims, there can be a personal liability. Give the deposition. Karen is a member of Thompson Hines business litigation group. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. In examining the scope of the no-contact rule, this article will look at various jurisdictions because, under New Yorks DR 1-105(B), the choice of law rule added to the New York Code of Professional Responsibility in mid-1999, your conduct during pending litigation is ordinarily governed by the ethics rule of the state where the tribunal sits. 148 (D.N.J. This site uses cookies to store information on your computer. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. What this means is that notes, correspondence, think pieces, The second inquiry, protections outside the no-contact rule, is for another day. That deposition notice must set forth the areas of inquiry with enough specificity so the other party can reasonably designate and prepare the appropriate person (s) to testify. Martindale-Hubbell validates that a reviewer is a person with a valid email address. The Ohio lawyers eventually represented eight former employees at depositions. Roy Simon is a Professor of Law at Hofstra University School of Law and the author of Simons New York Code of Professional Responsibility Annotated, published annually by West. Or they simply may not care what happens to the Company. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. Accordingly, please do not include any confidential information until we verify that the firm is in a position to represent you and our engagement is confirmed in a letter. Counsel must understand that agreeing to represent a former employee individually for purposes of a deposition may not necessarily protect all communications with that witness under the umbrella of attorney-client privilege. The New York Court of Appeals addressed communications with former employees in dicta in Niesig v. Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. No wonder a Temple law student recently wrote a Comment entitled, A Call for Clarity: Pennsylvania Should Uniformly Allow Ex Parte Contact with Former Employees of a Represented Party Under PRPC 4.2, 73 Temple Law Review 1095 (2000). Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. Karen is a member of Thompson Hines business litigation group. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. For example, a current or former employee could be: A participant in the adverse action taken against your cli- ent (e.g., termination, demotion, decrease in pay, or hos-tile work environment) A witness to the adverse action or the emotional distress caused by the adverse action -or- Reach out early to former-employees who may become potential witnesses. You should treat everyone . Mai 2022 . California's Rule 5-310 limits the reasonable compensation for expenses and lost time relating to "attending or testifying," although this has also been interpreted to include time spent preparing counsel. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. Explain the case and why you or your adversary may want to speak with the former employee. Although the court made no decision on . The deposition may also take place at the court reporter's office if it's more convenient to the parties. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. . Later, they phoned a number of the defendants former employees and offered to represent them at their depositions, after they were subpoenaed to appear as non-party witnesses. Any ambiguity in the courts formula could be addressed after the interviews took place. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. Representing the Non-Party Deponent Who Cares by Philip J. Katauskas There is a wealth of literature for a civil litigator to consult on how to represent a witness at a deposition. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. ***. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. Zarrella again did not object or suggest that such representation was in any way improper to either Pacific Life's counsel or this Court; rather, it proceeded to depose Miller. endobj 39 0 obj >/Filter/FlateDecode/ID[36CE18A8C1A8084D921A73E68A65DB61>]/Index[34 7]/Info 33 0 R/Length 36/Prev 11576765/Root 35 0 R/Size 41/Type/XRef/W[1 2 0 . People who submit reviews are either individuals who consulted with the lawyer/law firm or who hired the lawyer/law firm and want to share their experience of that lawyer or law firm with other potential clients. Such "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Courts in multiple jurisdictions, including Washington and New York, have disqualified outside litigation counsel from representing non-control group employees where it has the effect of improperly preventing informal interviews of such employees by counsel for the opposing party. When the factors point to a substantial risk of disclosure of privileged matters (as opposed to the mere risk that the adverse party will learn damaging information), then appropriate notice should be given to the former employees concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employers counsel should be notified prior to any ex parte interview. (Emphasis added.) Prior to this case, Lawyer spent about one hour advising City Employee . Even where the no-contact rule does not protect former employees, you must candidly disclose your role in the litigation, and you may never solicit or listen to unauthorized disclosures of information protected by the former employers attorney client privilege or work product. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o Its five oclock somewhere: Lawyers working remotely from other jurisdictions during COVID-19, Censure serves as reminder that zealous advocacy is no excuse for lack of candor toward tribunal, New York says presumption for sharing confidential information in joint representations does not apply retroactively, Ohio clarifies when out-of-state lawyers are permitted to conduct and defend depositions, Supreme Court Ultimately Declines to Decide Attorney-Client Privilege Case, Impairment considered mitigating factor but insufficient to shield from meaningful sanctions. How long ago did employment cease? Direct departing employees specifically to review their files in light of the Company's standard document retention policy and any litigation "holds" or other applicable exceptions. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Rather, if Rule 4.2 is to be applied to former employees at all, a rational approach should be employed whereby the propriety of the ex parte contact is determined by assessing the actual likelihood of disclosure of privileged materials, not a nebulous fear that such disclosure might occur. 651, 658 (M.D. Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), among bar ethics committees nationwide, the clear consensus is that former managers and other former employees are not within the scope of the rule against ex parte contacts.] In most states, therefore, parties who want protection for their former employees will have to look beyond the no-contact rule. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. New York's Rule 3.4(b)(1) explicitly details the kind of compensation permitted for fact witnesses: "reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses." As part of the review process, respondents must affirm that they have had an initial consultation, are currently a client or have been a client of the lawyer or law firm identified, although Martindale-Hubbell cannot confirm the lawyer/client relationship as it is often confidential. The court granted the motion. 32 Most courts that have considered Peralta have found its reasoning persuasive. Ethical rules often prohibit joint representation of a corporate employee in a deposition when the witness faces potential liability for their* own conduct in connection with the facts underlying the litigation. Va. 1998)]. Thankfully, the California Law Revision Commission compiled a disposition table showing each former The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. Note that any compensation for cooperation could be used to undermine the employee's credibility. But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. Consider whether a lawyer should listen in on this initial call. Toretto advised these individuals that "they were entitled to counsel" and informed them that "Pacific Life could provide such counsel if they preferred that to choosing or finding their own." h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. Ierardi, 1991 WL 158911 at *2. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. Fla. Sept. 22, 2011): During the course of this litigation, Plaintiff Zarrella's counsel advised Defendant Pacific Life's counsel of record, Enrique D. Arana, that Zarrella wished to take the depositions of certain of Pacific Life's former high-level executives***. The charges involve allegations by two former residents of the YDC. Accordingly, the opinion states that "a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's . In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. While it may be possible to waive such conflicts, it increases the risk that outside litigation counsel will be disqualified from representing the employee in their deposition. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. GlobalCounsel Across Five Continents. Provide dates and as much concrete guidance on the litigation as possible. From Zarrella v. Pacific Life Ins. For ease of use, these analyses and citations use the generic term "legal ethics opinion" at 7. They may harbor ill will toward the Company or its current employees. But, relying heavily on a preliminary draft of the Restatement of the Law Governing Lawyers, the court decided to expand the no-contact rule to cover a person whom the lawyer knows to have been extensively exposed to relevant trade secrets, confidential client information, or similar confidential information of another party interested in the matter. The court explained its reasoning as follows: Where the risk of breaching protected areas is great, prophylactic provision must be made for monitoring. [See, e.g., Wright by Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 569 (1984); Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030, 1032 (1990).] An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. Although the district courtIndeed, if a witness who is approached for an allowed the law firm to represent the formerinterview tells the investigating agent that he is employees along with Occidental, it enjoined therepresented by an attorney (even one who happens to firm from mailing the proposed notices to the formeralso be X's attorney), the fH\A&K,H` 1"EY Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Zarrella argues that by offering to represent (and by so representing) Pacific Life's former (high-level) employees at their depositions, Pacific Life's counsel has violated Florida Rule of Professional Conduct Rule 4-7.4 (a), which provides in pertinent part: (a) Solicitation. . Assessing the likelihood of disclosure would depend upon weighing such factors as: the positions of the former employees in relation to the issues in the suit;, whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise;, the nature of the inquiry by opposing counsel; and, how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Zarrella first objected to the representation of Pacific Life's former high-level executives by Pacific Life's counsel when it filed the instant Motion on June 15, 2011. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. Except as provided in subdivision (b) of this rule [which pertains to an attorney's unsolicited written communications to prospective clients], a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. . Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. Consider the optics of the situation and confer with outside litigation counsel before extending an offer of joint representation to any current or former employee. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Va. 2008). Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. At that point, the nature and results of the inquiry can be examined and an appropriate remedy fashioned for any breach of ethics and/or other relevant rules governing discovery or admission of evidence. . The Merrill court then held that a former employee, such as the former police officer, is not in a position to bind his or her former employer. The attorney 1115, 1122 (D. Md. First, the representation of a party and an independent witness arguably may be narrowly distinguished from Guillen on the basis that there is at least some prior relationship between a corporate defendant and its former employee, or between the defendant city and its non-party witness/city employee. City Employee will be a witness. "It is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. at 5. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. There are numerous traps for the unwary in dealing with such witnesses. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. Lawyers who have received peer reviews after 2009 will display more detailed information, including practice areas, summary ratings, detailed numeric ratings and written feedback (if available). Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. COMMUNICATIONS WITH FORMER EMPLOYEES. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Keep in mind that relevant individuals go beyond just the one or two "key players," and that a business person may have a different perspective as to who is "key" than counsel. If the former employee is willing to be represented by Company counsel, or by independent counsel at the Company's expense, then advise the former employee to tell your adversary to contact the former employee's counsel--and to say nothing else. Bar association ethics committees have taken the same approach. Zarrella argues that by offering to represent (and by so representing) Pacific Life's former (high-level) employees at their depositions, Pacific Life's counsel has violated Florida Rule of Professional Conduct Rule 4-7.4(a), which provides in pertinent part: (a) Solicitation. But each jurisdiction is different, and counsel should check the relevant jurisdiction's rules before agreeing to a payment to any deposition or trial witness. Communications between the Company's counsel and former employees may not be privileged. Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. These resources are not intended as a definitive statement on the subject addressed. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. Every good trial lawyer knows that the right witness can make or break your case. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. If the Company's counsel cannot represent the former employee, the Company may be able to offer to pay for outside representation; outside counsel would need to obtain the former employee's informed consent, ensure no interference with the lawyer's independence and keep the client's confidentiality. In other words, it is not enough for the employee to have engaged in illegal conduct--all lawsuits involve allegedly illegal conduct--, the employee must have known that his or her conduct was illegal at the time. st francis of assisi incline village, Suggested guidelines 1993 ) ], plaintiffs attorneys had questioned two of defendants former high-level about! First step in preparing for a lawyer with some experience will toward the Company is a! Standard in attorney Ratings, please visit our Client Review Page more than a century attorney-client privilege months. Not care what happens to the Company and expenses for any testifying deposition... 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