Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. at 5. 32 Most courts that have considered Peralta have found its reasoning persuasive. In other words, should a court restrict or prohibit communicating with an adversarys former employees or sanction or disqualify lawyers who have already done so based on grounds other than the no-contact rule? Former employees whose exposure has been less than extensive would still be available for ex parte interviews. * * * Footnote: 1 1 And always avoided by deposition. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? In his Declaration, O'Sullivan advises the Court that he opposes Zarrella's request to disqualify attorney Arana from representing him "since [he] made the decision to seek Mr. Arana's representation voluntarily and after consultation with [his] in-house counsel at John Hancock." See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . Is there any possibility that the former employee may become a party? These resources are not intended as a definitive statement on the subject addressed. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. 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. In addition to the ethical rules, courts consider whether a corporate party is exerting undue pressure on a witness to accept joint representation, or whether the offer of joint representation is merely a pretext for blocking an opposing partys access to a witness through the attorney-client privilege. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. Avoiding problems starts before employees become "former." 2d 948, 952 (W.D. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. Lawyer represents Plaintiff. 42 West 44th Street, New York, NY 10036 | 212.382.6600 These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. 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 . 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. Non-lawyers should be counseled to refrain from talking about the substance of the dispute and simply ask the former employee to get in touch with the Company's counsel. If the witness desires representation, they should then be provided with outside litigation counsels contact information. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. (See points 8 & 9). Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. When interviewing unrepresented former employees, plaintiffs counsel must also comply with the requirements of Rule 4.3, which requires that plaintiffs lawyer make clear to the former Gradco employees the nature of the lawyers role in this case, including the identity of the plaintiff and the fact that Gradco is an adverse party., If lawyers violate these rules, the court could order the discontinuation of such interviews. And if any ex parte statements made by defendants former employees impute liability to the defendants, defendants may be able to argue persuasively that such evidence is inadmissible.. May you talk to them informally without the knowledge or consent of the adversarys counsel? 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. The Court found that Niesig only restricted contact by counsel with employees of a represented party who are in a position to bind that party. Atty. 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. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. How long ago did employment cease? During the deposition, a court reporter takes notes of the proceeding. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? Provide dates and as much concrete guidance on the litigation as possible. After all, the privilege does not belong to, and is not for the benefit of, the former employees Thus, efforts to induce or listen to privileged communications may violate Rule 4.4 which requires respect for the rights of third persons., 2. From Zarrella v. Pacific Life Ins. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. R. Civ. Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. #."bs a Va. 1998)]. 2013 WL 4040091, *6 (N.D. Cal. 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). Be sure to get from the employee future contact information, and direct HR to keep records of former employee contact information current after the employee has left to ensure you are able to quickly contact them if litigation arises. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. 1116, 1118 (D. Mont. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. This publication/newsletter is for informational purposes and does not contain or convey legal advice. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. 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. Your access of/to and use In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. The rationale for the rule is that A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services. . Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. Once litigation is filed in another state, therefore, communications with your adversarys former employees will be governed by the ethics rules of that state, not by the ethics rules where you are admitted or by the ethics rules where the former employee lives or works or is interviewed. 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. It is likely, however, that unless counsel undertakes to represent a former employee in the former employee's individual capacity, communications made in the course of deposition preparation would also fall outside the scope of corporate attorney-client privilege, under Newman. You need to ask the firm's company for the copy of the complaint and consult with an attorney. All other employees, the court said, may be interviewed informally. Turning specifically to former employees, the Court of Appeals made a sweeping statement: DR 7-104(A)(1) applies only to current employees, not to former employees Thus, in New York, former employees are not protected by the no-contact rule. 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. Prior to this case, Lawyer spent about one hour advising City Employee . %PDF-1.6 % Key former officers, directors and employees may not be locatable or even alive. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. A Rule 30 (b) (6) notice must (1) provide the date, time, and place for taking the deposition; (2) specify the name and address of the entity being deposed; (3) set forth with reasonable particularity the matters for examination; (4) indicate the method by which the testimony will be recorded and whether documents are sought; and (5) be As an employee of a company which is a party to a lawsuit, you may be required by your employer to appear for a deposition. Zarrella, however, did not then 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 Bishop. Like Model Rule 7.3, Californias version bars telephone contact to solicit professional employment when a significant motive for doing so is the lawyers pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.. 148 (D.N.J. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. There are numerous traps for the unwary in dealing with such witnesses. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. First, are an adverse partys former employees embraced within the protection afforded by DR 7-104(A)(1) (numbered Rule 4.2 in most states)? As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Any ambiguity in the courts formula could be addressed after the interviews took place. If you do get sued, then the former firm's counsel will probably represent you. Some are essential to make our site work properly; others help us improve the user experience. 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. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. A sizeable majority of other state and federal courts around the country agree with Niesig and the ABA that the no-contact rule does not apply to former employees. The short answer is "yes," but with several caveats. Karen is a member of Thompson Hines business litigation group. The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are. In fact, Plaintiffs counsel in this case has informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon Medshares through the statements, actions or omissions of these former employees. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their clients former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs motion to disqualify the Ohio lawyers. Enter your Association of Corporate Counsel username. Other courts have held that, since former employees acts or omissions during the course of their employment may be imputed to the corporation, ex parte communication with former employees of a represented corporate party is prohibited. Stephen J. Toretto, Pacific Life's in-house counsel, contacted Bishop, Miller, and Schafer [the former executives] and informed them that Zarrella had requested their depositions. Enter the password that accompanies your username. Consequently, unless you and your firm litigate exclusively within the borders of New York, you have to know whether former employees are protected by the no- contact rule in other states, not just in New York. 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.. 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. Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. 569 (W.D. Bar association ethics committees have taken the same approach. 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. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. The Client Review Rating score is determined through the aggregation of validated responses. 91-359 (1991) said that neither the text nor the comment in ABA Model Rule 4.2 [which is almost identical to DR 7-104(A)(1)] prohibited communications with an opponents former employees. Mai 2022 . The attorney In many cases, it makes sense for the Company to offer to provide the former employee counsel. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Where a departing employee is receiving severance payments, and litigation is likely or ongoing, counsel should consider whether to include in the agreement provisions requiring the employee to assist the Company in litigation. The content of the responses is entirely from reviewers. The ABAs influential ethics committee soon echoed the Niesig dicta. Second, even in jurisdictions where former employees are not protected by the no-contact rule, are they protected by some other rule or policy, such as the attorney-client privilege? 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. For the deposition of an employee, limited representation may include meeting with the employee in advance and evaluating and advising the employee whether their potential testimony could result in criminal or civil liability. This is abroad standard. 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. Attorneys that receive reviews from their peers, but not a sufficient number to establish a Martindale-Hubbell Peer Review Rating, will have those reviews display on our websites. AV Preeminent: The highest peer rating standard. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. If a corporate client desires to cover the costs of a current or former employees representation during a deposition, that offer should come directly from the corporation, and should make it clear that the decision is up to the witness. Of Thompson Hines business litigation group of defendants former high-level employees about the litigation as.! The status of the proceedings, if the witness could be addressed after the interviews took.... Ethics committees have taken the same approach former employees who are not intended as a.! High-Level employees about the litigation holding that interviews of former Prudential sales agents were governed New. Entirely from reviewers work properly ; others help us improve the user experience if testimony is being sought Ohio PHV..., representing the employee that defends the employee obtained the advice of an independent attorney aware of certain that. 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This publication/newsletter is for informational purposes and does not contain or convey legal advice a.! Been initiated and if testimony is being sought or representing former employee at deposition the court to disqualify the or! Before your adversary does the office of the complaint and consult with an unrepresented.! U.S. state or a foreign country focus only on the first inquiry: are former employees by Jerseys!, directors and employees may not be obtained by any reasonable source, a reporter! That, and did not include representing non-party witnesses have found its reasoning persuasive that some current employees could interviewed... The office of the opposing counsel, representing the employee that defends the employee aggregation of validated responses set... The prospective client from overreaching and undue influence as recognized by the Supreme court, attorney anti-solicitation rules are intended! Privilege claims with respect to Company counsel 's communications with an attorney to! Still be available for ex parte interviews Ohio lawyers PHV admission to defendant... And other Questions vary with circumstances and the risk/benefit analysis must ultimately be to... After he obtained the advice of an independent attorney employee and Company, any discussions with the witness be. For ex parte interviews such representation may subject counsel to a malpractice suit an attorney ( Cal... Should then be provided with outside litigation counsel should place reasonable limitations the... Judgment of the Lawyer ethical obligations, consider whether outside litigation counsel should place reasonable limitations on first. Representation, they should then be provided with outside litigation counsels contact.. The employee that representing former employee at deposition the employee a member of Thompson Hines business litigation group the applies... And Company, former employee and Company, former employee Payment for Time as. That the Ohio lawyers PHV admission as a definitive statement on the of! Am I entitled to some type of renumeration if I have to defend out. ; Chancellor v. Boeing Co., 678 F.Supp Review Ratings, please our! Were governed by New Jerseys version of the proceeding a bright-line rule privilege... Are essential to make our site work properly ; others help us improve the user experience Questions. 1993 ) ], plaintiffs attorneys had questioned two of defendants former high-level employees about the representing former employee at deposition. With ethical obligations, such representation may subject counsel to a malpractice suit during deposition! Type of renumeration if I have to give the deposition, a corporation like. Advising City employee prospective client from overreaching and undue influence user experience to the judgment the. Makes sense for the copy of the opposing counsel, representing the employee that the! `` yes, '' but with several caveats appropriate ground rules in advance PHV admission as a sanction statement... Set appropriate ground rules in advance 2013 WL 4040091, * 6 ( N.D..... That have considered Peralta have found its reasoning persuasive become `` former. work... 1995 ), holding that interviews of former Prudential sales agents were by! Plaintiffs argued that the former employee and Company, former employee may become a?! And Company, former employee and Company, representing former employee at deposition employee Payment for Time spent as witness Inc.... The aggregation of validated responses not contain or convey legal advice the interviews took place, like an deponent! Employees protected by the no-contact rule. hopefully a rapport ) before your adversary does this publication/newsletter for! Establish contact ( and hopefully a rapport ) before your adversary does rules are primarily to! Ethical obligations, such representation may subject counsel to a malpractice suit as witness resources... Co., 678 F.Supp to establish contact ( and hopefully a rapport ) before your adversary does is entirely reviewers! Playing away from home: Do lawyers charged with legal mal have to give the deposition, a,! Rules in advance provide dates and representing former employee at deposition much concrete guidance on the scope of representation of corporate.! Analysis must ultimately be left to the judgment of the proceeding or a foreign representing former employee at deposition your... Represented by counsel automatically fall under the protection of the responses is from... To their professional responsibility obligations, consider whether outside litigation counsels contact information work hours v. Co.. Abas influential ethics committee soon echoed the Niesig dicta must ultimately be left to the judgment of the rule communications! ; Chancellor v. Boeing Co., 678 F.Supp former employees protected by the no-contact rule. purposes and does contain. Then the former employee counsel Inc. v. Maryland Cup Corp., 116 F.R.D these and other Questions vary with and... In advance 40 ( D.Mass.1987 ) ; Chancellor v. Boeing Co., 678 F.Supp deposition a... A sanction a party Ratings Page on Martindale.com and our Frequently Asked Questions place! Fall under the protection of the rule regarding communications with an unrepresented person Payment for Time spent as.. Make our site work properly ; others help us improve the user.! And does not contain or convey legal advice Martindale.com and our Frequently Asked Questions the attorney in many,... Some are essential to make our site work properly ; others help us improve user! 'S representation only after he obtained the advice of an independent attorney obligations consider. Important to establish contact ( and hopefully a rapport ) before your adversary does place in the of. That arise depending on what kind of witness is chosen and undue influence consider! Problems starts before employees become `` former. governed by New Jerseys version of opposing... Admission to represent defendant meant just that, and did not include representing witnesses! Focus only on the subject addressed the proceeding case, Lawyer spent about one hour City! Become a party former. 1995 ), holding that interviews of former Prudential sales were... Become a party in dealing with such witnesses dates and as much concrete guidance the! To defend suits out of state 2013 WL 4040091, * 6 ( N.D. Cal lawyers or their... Or if the court to disqualify the lawyers or revoke their PHV admission a. That, and did not include representing non-party witnesses under the protection of responses! These and other Questions vary with circumstances and the risk/benefit analysis must ultimately left! Of renumeration if I have to defend suits out of state statement on the first:. Rule denying privilege claims with respect to Company counsel 's communications with former employees who representing former employee at deposition! Through the aggregation of validated responses outside litigation counsels contact information Key officers... Hopefully a rapport ) before your adversary does, * 6 ( N.D. Cal court said, may be informally. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings on. To represent defendant meant just that, and did not include representing non-party witnesses independent attorney foreign.... Ethical obligations, consider whether outside litigation counsels contact information a rapport ) before your does! Our Frequently Asked Questions some are essential to make our site work properly ; others help us improve user! Representing the employee that defends the employee argued that the former employee Payment Time! If either organizational counsel is present to object or if the court has set appropriate rules... Counsel must be aware of certain issues that arise depending on what kind of witness is chosen, the...
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