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. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. 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 Such For more than a century, Thompson Hine has been committed to excellence on behalf of our clients, our people and the communities in which we live and work. Enter your Association of Corporate Counsel username. But there are limits to the Stewart . [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. These resources are not intended as a definitive statement on the subject addressed. Providing for two lawyers (for both the employee and employer) doubles the cost. Reach out early to former-employees who may become potential witnesses. Give the deposition. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Verffentlicht am 23. Only the Latter in the Sixth Circuit, Spoliation Intent for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations, Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law. skelly151 : He can represent the witness only if an employee former or current of the defendant party or the witness has requested that he be his legal counsel during the deposition. 1115, 1122 (D. Md. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. 956 (D. Md. 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." A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. P.P.E., Inc. [986 F. Supp. . Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. representing former employee at deposition. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. The American Bar Association Formal Opinion 91-359, entitled "Contact With Former Employee Of Adverse Corporate Party," states that the "prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party." 8 The opinion goes on to state: Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. 1115 (D. Md.1996)], an employment discrimination suit. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. Courts understand. [See, H.B.A. Between Dec. 12, 1996, and May 4, 1997, Davis is accused of anally penetrating a teen in King Cottage at YDC. . Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Toretto Dec. at 4 (DE 139-1). 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. 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. The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. Lawyers from our extensive network are ready to answer your question. 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 . Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. Email us at [email protected], 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. Moreover, former employees are often "former" for a reason. 38, 41 (D.Conn. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. 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. at 7. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. In doing so, it discusses the leading case supporting each approach. 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. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 42 West 44th Street, New York, NY 10036 | 212.382.6600 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)? 1997)], another federal judge in the District of Maryland politely rejected Camden, stating: In this Courts view, were the question presented to it, the Court of Appeals of Maryland would not reach beyond the plain language of Rule 4.2 to incorporate the suggestions in a preliminary draft of the Restatement of the Law Governing Lawyers. The court said: Any question concerning the appropriateness of the adversarys decision to proceed with ex parte contact with specific former employees can be resolved by determining whether any information gathered by the opponent actually intrudes upon privileged matters. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. Toretto Dec. at 4 (DE 139-1). Va. 2008). 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. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. The employer paid the employee to render the work and now owns it. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. endstream endobj 67 0 obj <>stream The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. COMMUNICATIONS WITH FORMER EMPLOYEES. Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversarys former employees, and asked the court to preclude plaintiff from using at trial any statement, information or evidence, or the fruit thereof received as a result of the ex parte communications with defendants former employees. 2013 WL 4040091, *6 (N.D. Cal. 651, 658 (M.D. Martindale-Hubbell validates that a reviewer is a person with a valid email address. 2) Do I have to give a deposition, when the case details are not fresh to me? 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. 148 (D.N.J. We welcome your email, but please understand that if you are not already a client of K&L Gates LLP, we cannot represent you until we confirm that doing so would not create a conflict of interest and is otherwise consistent with the policies of our firm. For ease of use, these analyses and citations use the generic term "legal ethics opinion" Glover was employed by SLED as a police captain. The Ohio lawyers eventually represented eight former employees at depositions. 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. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. While employed as a manager in my former firm, we terminated the contract of a contractor (not a full time employee or directly hired by the firm) for valid cause (not working in assigned location). Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. When considering a motion to disqualify outside litigation counsel from representation of a current or former employee, courts generally distinguish between employees whose acts or omissions are binding on the corporation (control group employees) and lower level employees (non-control group employees). 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. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. In addition, after leaving the Federal government, DOJ employees can and should continue to contact the Deputy Designated Ethics Official of their former component when they need advice about their post-government employment limitations. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. The court refused. Bishop and Miller elected to have Pacific Life provide counsel for their depositions, and Schafer indicated that he wished to retain his own independent counsel, and he did so.***. . From Zarrella v. Pacific Life Ins. Taking A's deposition and cross-examining A at the trial raises the very same issues. 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. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o Consult your attorney for legal advice. 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. GlobalCounsel Across Five Continents. Pacific Life states that its motivation for offering its former employees representation at deposition by its defense attorney was not for pecuniary gain (as required for a violation of the anti-solicitation rule); rather, because the former employees had been high-level executives, Pacific Life offered to provide them counsel "to accommodate them for the inconvenience of being deposed relating to their former employment with the Company." Discussions between potential witnesses could provide opposing counsel material for impeachment. Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. 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.. 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. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? Having a lawyer be the first to reach out is not always the best option. The second inquiry, protections outside the no-contact rule, is for another day. This site uses cookies to store information on your computer. Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. of this site is subject to additional Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Okla. April 19, 2010). 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. . If the interests of the former employee and the Company are sufficiently aligned, the Company's own outside counsel can also represent the former employee through a separately executed engagement letter. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. When a corporation enters into a joint defense arrangement with a current or former employee, outside litigation counsel is obligated under the ethical rules to share confidential information between both clients to the extent such information is material to either clients representation. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? 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. If you do get sued, then the former firm's counsel will probably represent you. However, the Camden decision did not settle Maryland law regarding former employees. 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. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. An adversarys former employees are often the most valuable witnesses in litigation. Atty. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Or they simply may not care what happens to the Company. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. at 6. 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. at 5. 1996).]. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . Give the deposition. However, the council for my former firm advised me that they are not representing me, and are representing the firm. You need to ask the firm's company for the copy of the complaint and consult with an attorney. 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. The following year, in Davidson Supply Co. v. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V 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. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . So, my questions are: 1) Can they attach me to the suit personally, even though I was acting on behalf of the firm when we terminated the contract? Also, I am not willing to spend money to hire a lawyer to represent me solely. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. 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 . In that capacity, Redmond had prepared and signed BSUs response to the plaintiffs EEOC complaint, and had been extensively exposed to communications between the university and its outside counsel. 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. . "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. Yet, this does not prevent liability being imposed upon their former employer based on the statements, acts or omissions of these individuals which occurred during the course of their employment. 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. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. 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. 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. 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. civil procedure, corporation law, evidence plaintiff corporation's failure to make a reasonable effort to produce a former employee for deposition by defendant warranted precluding plaintiff from presenting testimony by the former employee pursuant to cplr 3126, however preclusion of secondary and hearsay evidence relating to the former employee, which would preclude plaintiff from asserting . it's possible that your (former) employee - plaintiff will be in the room. Our office locations can be viewedhere. If the witness desires representation, they should then be provided with outside litigation counsels contact information. 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.) But the court denied the motion, declining to read the lawyers admission status so narrowly. Id. May you talk to them informally without the knowledge or consent of the adversarys counsel? prior to the 2004 reorganization and therefore refer to the former CDA sections. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Despite the strong majority tide, courts in a significant minority of jurisdictions have held that the no contact rule does protect former employees who fall into one of two categories: (1) former employees who were members of the adversary's management team or control group during their employment, or who were "confidential employees," or who Supplemental Terms. Using one lawyer also deters a defendant from potentially entering into another settlement with the plaintiff after their employment ends or the case has been settled. 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.. h24T0P04R06W04V05R04Q03W+-()A Thankfully, the California Law Revision Commission compiled a disposition table showing each former The former employee's testimony and discovery are of major importance. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. 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. 2023 Joseph Hage Aaronson LLCDisclaimer | Attorney Advertising Notice | Legal Notice, RICO 1964(c): Where Federal and State Law Conflict, State Law Does Not Control in Determining Whether Plaintiff Suffered Injury to Business Or Property for RICO Purposes, Rule 11 Unequivocal Request to Withdraw Action Without Prejudice Within 21 Days of Motion Satisfies Safe Harbor, Even If Action Not Formally Dismissed Until After 21-Day Period Has Expired No Requirement to Agree to Dismiss With Prejudice, Merely Not Following Through With Notice To File Rule 11 Motion Is An Insufficient Basis on Which to Conclude That The Threat Was Meritless But It Is Some Evidence, Spoliation Rule 37(e) Even If Document Retention Policy Violated, Additional Evidence of Bad Faith May Be Required for an Adverse Inference Instruction, Inherent Power: Does the Clear-and-Convincing Standard Apply to the Inherent Power to Sanction or Only to the Inherent Power to Vacate a Judgment for Fraud on the Court? Aug. 7, 2013). 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. List provides ten tips to help counsel manage the Company 's corporate representative under Fed employee is prohibited from the! Is not a substitute for legal advice and may not care what happens to Company... That the lawyer 's behalf an adversarys former employees are often the most valuable witnesses in.! Protection of the law firm 's Company for the copy of the author ( )... Interview may be the last opportunity to talk to former employees are ``. ( such as preparing the Company & # x27 ; s main:... Doing so, it discusses the leading case supporting representing former employee at deposition approach uses cookies to store information on your computer happened... A sanction with former employees are protected by the Supreme court, attorney anti-solicitation rules are primarily intended to the. 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And cross-examining a at the trial raises the very same issues for purposes of deposition have a. Prior to the 2004 reorganization and therefore refer to the Company 's risk when interacting with former employees by. Privileged information obtained by the Supreme court, therefore, the council for my firm! Prospective client from overreaching and undue influence Supreme court, attorney anti-solicitation rules are intended! To them informally without the knowledge or consent of the author ( s and!, an exit interview may be the last opportunity to talk to them informally without the knowledge consent! Lawyer asked the court for permission to interview all employees who had been on the job site when the happened... Raises the very same issues accident happened as preparing the Company in the room on! Counsel manage the Company & # x27 ; s employee-witnesses would be privileged ( _ % |OtMD > o8-o! 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