Leverage the vast knowledge and experience of your global in-house peers, Connect with hundreds of in-house counsel all over the world, Find your next career opportunity and be prepared for the interview, Learn more about ACCs Seat at the Table initiative, Use this Model to Gauge the Maturity of Your Department's DE&I Functions, Need Help? Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. 1115 (D. Md.1996)], an employment discrimination suit. These resources are not intended as a definitive statement on the subject addressed. Thank you for your consideration. This question breaks down into two separate and equally important inquiries. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. 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. 66 0 obj <>stream 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. An injured worker sued a contractor for injuries arising out of a construction accident. Or they simply may not care what happens to the Company. 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 ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. 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. 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. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. Karen is a member of Thompson Hines business litigation group. 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). Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. 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. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. 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. 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." 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. 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? Our office locations can be viewedhere. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . Even in the face of Pacific Life's untimeliness argument, Zarrella has failed to proffer any explanation as to why it waited approximately two months from first learning that Pacific Life's counsel intended to represent its former employees, until after Bishop and Miller's depositions were completed and after the discovery deadline had passed, before filing the instant Motion contending that such representation is unethical. The deposition may also take place at the court reporter's office if it's more convenient to the parties. Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. For more information, read our cookies policy andour privacy policy. 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. Is there any possibility that the former employee may become a party? 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 . What this means is that notes, correspondence, think pieces, Communications between the Company's counsel and former employees may not be privileged. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Richard F. Rice (Unclaimed Profile). 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. .the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify . In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. . 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. During the deposition, a court reporter takes notes of the proceeding. 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 . R. Civ. Va. 2008). 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. Bar association ethics committees have taken the same approach. The case is Yanez v. Plummer. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. Details for individual reviews received before 2009 are not displayed. #."bs a Introduction. Martindale-Hubbell validates that a reviewer is a person with a valid email address. The short answer is "yes," but with several caveats. 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.. If you were acting on behalf of your former employer, you typically cannot be sued individually. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. Karen is a member of Thompson Hines business litigation group. 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. 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). The attorney 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? 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. 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. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. 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. Counsel may need to be involved in this process. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. There, the plaintiffs asked the courts permission to conduct ex parte interviews with five former employees of defendant Medshares, including a former in-house counsel, a former Vice-President of Managed Care, and three former non-management employees. Taking A's deposition and cross-examining A at the trial raises the very same issues. And make it easy for the former employee however you can, including by offering to provide legal representation, either through the Company's lawyers or independent counsel, as appropriate. Moreover, former employees are often "former" for a reason. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. 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. 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- As to any communication between defendant's counsel and a former employee whom counsel does not represent, which bear on or otherwise potentially affect the witness's testimony, consciously or unconsciously, no attorney-client privilege applies. hR]K0+,i1"bCL\3&&'\8` >q",,}cc]WP TXZ=.]FcTc:u#`%Wz(1Xpj,Nm:GX.2HdBXj0TmL0tyyNy`pD4A|*)X\\ mdER'U[x@<8Rvf6NNw)8\:GM&~y4_M}~u]"">* y$ In doing so, it discusses the leading case supporting each approach. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. Toretto Dec. at 4 (DE 139-1). 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. Zarrella does not dispute that its counsel knew "well in advance" of Bishop's April 14, 2011 deposition that Pacific Life intended to represent Bishop at his deposition. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R h24T0P04R06W04V05R04Q03W+-()A Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). Courts understand. The following are important clauses for such. 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. Ethics, Professional Responsibility and More. Distinguished: An excellent rating for a lawyer with some experience. ABA Formal Ethics Op. This publication/newsletter is for informational purposes and does not contain or convey legal advice. 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. Depending on the claims, there can be a personal liability. 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. 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. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. 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. . 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. Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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. 2023 Association of the Bar of the City of New York.
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