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. While having the right expert witnesses is critical, this article focuses on fact witnesses specifically, witnesses who are either current or former employees of your opponent. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. Such Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. 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. Glover was employed by SLED as a police captain. The former employee's testimony and discovery are of major importance. 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. Toretto Dec. at 4 (DE 139-1). 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.. These resources are not intended as a definitive statement on the subject addressed. 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). For more information, read our cookies policy andour privacy policy. . These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. 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.. 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. 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. 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 . Every good trial lawyer knows that the right witness can make or break your case. 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. The case is Yanez v. Plummer. Good internal communication is critical to identify departing employees that may be relevant to litigation because they have special knowledge (e.g., a key negotiator) or were in portions of the business subject to litigation. The attorney Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. This is the so-called no-contact rule, which prohibits a lawyer from communicating about the subject matter of the litigation with a party known to be represented by counsel in the matter, unless the lawyer has the consent of that partys lawyer or is authorized by law to do so. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. In fact, deposition testimony can also be used in court at trial. Employee Fired For Deposition Testimony. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. 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.. 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. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. 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. Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys 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. Mai 2022 . In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. ***. 42 West 44th Street, New York, NY 10036 | 212.382.6600 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. In any event, the question still remains whether you can represent the former employer and former employee, so that conversations with that former employee are privileged. 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. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. 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. at 7. 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." [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. Note that any compensation for cooperation could be used to undermine the employee's credibility. The following are important clauses for such. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. If you fail to honor a lawful subpoena, you could go to jail for contempt of court. 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. 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. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. 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. The following year, in Davidson Supply Co. v. it's possible that your (former) employee - plaintiff will be in the room. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. Wells Fargo Bank, N.A. 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. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. During the deposition, a court reporter takes notes of the proceeding. 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 1115, 1122 (D. Md. 2005-2023 K&L Gates LLP. Supplemental Terms. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. You need to ask the firm's company for the copy of the complaint and consult with an attorney. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45." Karakis v. Foreva Jens Inc., Lawyers from our extensive network are ready to answer your question. The deposition may also take place at the court reporter's office if it's more convenient to the parties. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. more likely to be able to represent the corporation well. Aug. 7, 2013). Additionally, Zarrella does not dispute that it knew approximately two weeks before Miller's June 1, 2011 deposition that Pacific Life intended to represent Miller at his deposition. Reply at 3 (DE 144). Va. 1998)]. endstream endobj 67 0 obj <>stream swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. 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***. Your access of/to and use 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. Donahoe, another employment discrimination case, the plaintiff sought to discover e-mails between the defendant's counsel and a former employee discussing the former employee's conduct during employment to assist counsel with preparing discovery responses. Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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. Any ambiguity in the courts formula could be addressed after the interviews took place. They might also be uncooperative at least at first. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. . Prior to this case, Lawyer spent about one hour advising City Employee . While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. 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. 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). From Zarrella v. Pacific Life Ins. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 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 the Ohio State Bar Associations Ethics Committee. Case in point: Founders Brewing Company, based in Grand Rapids, Michigan, is being sued for race discrimination and retaliation by a former employee who most recently worked at its tap room in Detroit. endstream endobj 69 0 obj <>stream You are more than likely not at risk since you have not been sued. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. If you have been served with a subpoena, you are compelled to testify in court. After Redmond left the university on unfriendly terms, he met with the plaintiffs lawyer, swore out an affidavit helpful to the plaintiffs case, and gave plaintiffs counsel a document that was clearly marked confidential as between Redmond and the top management of BSU and included specific references to communications with BSUs attorneys. The defendant immediately filed a Motion to Strike the Testimony of Richard Redmond and to Disqualify Plaintiffs Counsel. Avoiding problems starts before employees become "former." 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. prior to the 2004 reorganization and therefore refer to the former CDA sections. 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. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. 303 (E.D. endstream endobj 70 0 obj <>stream 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." Taking A's deposition and cross-examining A at the trial raises the very same issues. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. . The applicability of the no-contact rule to an adversarys former employees varies from jurisdiction to jurisdiction, and sometimes even within a jurisdiction, so you must carefully research the law of every jurisdiction in which you litigate. Mich. 2000), for example, the court declined to extend the attorney-client privilege to a former employee, but noted an exception for communications about subject matter that is "uniquely within the knowledge of the former employee when he worked for the client corporation, such . 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. 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. employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. Consult your attorney for legal advice. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. 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. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Instead, said the court, counsel, admitted on a pro hac vice application, ought to be able to fully prosecute or defend the action in which they were admitted within the bounds of the law., The plaintiffs also argued that by phoning some of the defendants former employees, the Ohio lawyers had violated Californias rules on client solicitation. 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 fH\A&K,H` 1"EY 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. Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. 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. 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. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. Moreover, former employees are often "former" for a reason. 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. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. [See, H.B.A. Atty. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. Preparing CRCP 30(b)(6) Deposition . 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. 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. He also disqualified the law firm . 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. Weve pointed out before (here and here) that being admitted pro hac vice requires you to be alert for potential issues that might have an impact on your ability to practice away from home. 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. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . Thus, an exit interview may be the last opportunity to talk to employees. Subject addressed Arana contact him during depositions for purposes of inclusivity attend a deposition a..., hands-on articles from the premiere publication for in-house counsel did O'Sullivan choose to attorney. Subpoena, you could go to jail for contempt of court in fact, deposition testimony also. Will probably represent you ABA Model Rules, which represent a voluntary organization #! 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Achievement and ethical standards explain why you are flagging this content: * this Litigation Minute uses the gender-neutral their.