hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ 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. 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 . Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . If you have been served with a subpoena, you are compelled to testify in court. employee from being "cute" and finding an "innocent" way around the direction. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. 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. representing former employee at deposition. 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. 3. 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. 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. Okla. April 19, 2010). 2023 Association of the Bar of the City of New York. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. 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 . 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. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. 1115, 1122 (D. Md. By in-house counsel, for in-house counsel. Our office locations can be viewedhere. Preparing CRCP 30(b)(6) Deposition . 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. 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). 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. 569 (W.D. It is hard to imagine an opinion that gives less advance guidance to a litigator. 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. Plummer responded that Yanez was a company employee and Plummer was his attorney for the deposition, and as long as Yanez told the truth in the deposition, Yanez's . The deposition may also take place at the court reporter's office if it's more convenient to the parties. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. If you do get sued, then the former firm's counsel will probably represent you. 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. Give the deposition. The consequences of a misstep range from losing the ability . Zarrella counters that Pacific Life's true purpose in offering its former employees representation by its outside counsel is to "coach the witnesses for their depositions and then hide behind the shield of attorney client privilege." What this means is that notes, correspondence, think pieces, Proc. This publication/newsletter is for informational purposes and does not contain or convey legal advice. [See, H.B.A. The court granted the motion. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. 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. Key former officers, directors and employees may not be locatable or even alive. Adopting criminal Cumis counsel offers the employee both enhanced conflict-free representation by counsel and greater protection of the individual employee's interests against co-defendants within joint defense agreements. 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 Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. Email us at nylerhelp@newyorklegalethics.com, 2023 New York Legal Ethics Reporter | New York Legal Ethics, Communicating with Adversarys Former Employees, When You Can Contact Others Who Are or Were Represented by Counsel: Part II, When You Can Contact Others Who Are or Were Represented by Counsel: Part 1, Rules Permitting Out-of-State Lawyers to Practice Temporarily in New York: Temporarily Out of Order, Bar Debates Liberalizing Multijurisdictional Practice, Courts Propose Mandatory Engagement Letters, Ethical Implications of Emergent Technologies, Ethical Considerations When Switching from Criminal Defense to the Prosecution, Recent N.Y. Ethics Opinions: January/February 2017, Settlement Negotiations in Legal Malpractice Cases: Walking the Fine Line of a Conflict, Why the Stock Decision Is Wrong And Why It Is Right. 651, 658 (M.D. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 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. The purpose of a deposition is to obtain answers to the attorney's questions, from a witness, who is sworn in, under oath. COMMUNICATIONS WITH FORMER EMPLOYEES. Supplemental Terms. Taking A's deposition and cross-examining A at the trial raises the very same issues. Lawyers from our extensive network are ready to answer your question. P.P.E., Inc. [986 F. Supp. 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, it is not enough for the employee to have engaged in illegal conduct--all lawsuits involve allegedly illegal conduct--, the employee must have known that his or her conduct was illegal at the time. Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? 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. 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 . The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . The Association of Corporate Counsel (ACC) is the world's largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations, nonprofits and other private-sector organizations around the globe. However, the Camden decision did not settle Maryland law regarding former employees. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. 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. 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. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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.) * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Consider whether a lawyer should listen in on this initial call. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). 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 . 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. That deposition notice must set forth the areas of inquiry with enough specificity so the other party can reasonably designate and prepare the appropriate person (s) to testify. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. listings on the site are paid attorney advertisements. 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. Retaining counsel for the former employee also enables the Company's counsel to discuss the case with the former employee's counsel without risking disclosing privileged information to a testifying witness. 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. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 5. 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. Va. 2008). Representing the Non-Party Deponent Who Cares by Philip J. Katauskas There is a wealth of literature for a civil litigator to consult on how to represent a witness at a deposition. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. 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." 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. 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. .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 . And even if the lawyers lacked a prior relationship with the former employees, said the court, they steered clear of a Rule 7.3 violation because they did not solicit for pecuniary gain. Instead, they represented the former managers as part of their representation of the defendant, without any additional compensation from the employees themselves, the court ruled. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. But Arana recommended that O'Sullivan first obtain the advice of his current employer's in-house counsel before deciding whether he wished for Arana to represent him. 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. Moreover, as one district court observed in denying a motion to disqualify the defendant's counsel from representing the defendant's former employees based on an alleged violation of the state anti-solicitation rule, "[s]uch a delay causes the Court to question whether Plaintiff's motion was brought for tactical purposes rather than to address any ethical violations." Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. 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. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. How long ago did employment cease? 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***. How can the lawyer prove compliance with RPC 4.3? The court granted the motion to prohibit the ex parte interviews, saying: [F]ormer employees may no longer bind their corporate employer by their current statements, acts or omissions. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. 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. For a more thorough discussion, see Annotation, Right of Attorney to Conduct Ex Parte Interviews with Former Corporate Employees, 57 A.L.R.5th 633 (1998). ***. Richard F. Rice (Unclaimed Profile). Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? The attorney In many cases, it makes sense for the Company to offer to provide the former employee counsel. Reply at 3 (DE 144). Va. 1998)]. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Mr. William L. Sanders (Unclaimed Profile). People who submit reviews are either individuals who consulted with the lawyer/law firm or who hired the lawyer/law firm and want to share their experience of that lawyer or law firm with other potential clients. Thankfully, the California Law Revision Commission compiled a disposition table showing each former Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. Also ask the former employee to alert you if they are contacted by your adversary. Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), among bar ethics committees nationwide, the clear consensus is that former managers and other former employees are not within the scope of the rule against ex parte contacts.] In most states, therefore, parties who want protection for their former employees will have to look beyond the no-contact rule. 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. 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.. 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.. Whether to represent a former employee during the deposition. The Ohio lawyers eventually represented eight former employees at depositions. 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. discussion with former employees, or other sources. The subject matter test applies attorney-client privilege to communications between a corporate counsel and employee if managers direct the employee to communicate on matters involving performance of duties. Distinguished: An excellent rating for a lawyer with some experience. 38, 41 (D.Conn. They may harbor ill will toward the Company or its current employees. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. In this Courts opinion, the enforcement of such novel strictures and interpretations as may be found in that draft should be made by a duly promulgated amendment to the rule itself, rather than by the gloss of case law. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. . . 2d 948, 952 (W.D. 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. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o more likely to be able to represent the corporation well. former employee were privileged. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. A deposition without compensation a subpoena, you are compelled to testify in court court both. 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