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. How long ago did employment cease? Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. From Zarrella v. Pacific Life Ins. 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., [See, e.g., Wright by Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 569 (1984); Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030, 1032 (1990).] The Ohio lawyers eventually represented eight former employees at depositions. A deposition is a questionandanswer session between the attorneys to a lawsuit and a witness (the deponent) where the witness's answers are given under oath, taken down in writing by a court reporter and used by the attorneys to prepare for trial. 2) Do I have to give a deposition, when the case details are not fresh to me? The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 956 (D. Md. Preparing CRCP 30(b)(6) Deposition . Id. The Court also declines to disqualify Pacific Life's counsel from representing Daragh O'Sullivan at his deposition because it does not find that Pacific Life's counsel (either its in-house attorney or its outside attorney) improperly solicited O'Sullivan. endstream endobj 69 0 obj <>stream Note that any compensation for cooperation could be used to undermine the employee's credibility. * * * Footnote: 1 1 And always avoided by deposition. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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 adversarys management team or control group during their employment, or who were confidential employees, or who were extensively exposed to the adversarys confidential or privileged information during their employment; and (2) former employees whose acts or omissions during their employment were imputed to the former employer for liability purposes, or whose statements about their activities are considered binding admissions against the former employer under the rules of evidence. 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 . Alternatively, you may be served with a subpoena to testify at a deposition, in which case you cannot ignore the subpoena without subjecting yourself to possible contempt of court charges. Although the district courtIndeed, if a witness who is approached for an allowed the law firm to represent the formerinterview tells the investigating agent that he is employees along with Occidental, it enjoined therepresented by an attorney (even one who happens to firm from mailing the proposed notices to the formeralso be X's attorney), the 1115, 1122 (D. Md. 651, 658 (M.D. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 250, 253 (D. Kan. U.S. Complex Commercial Litigation and Disputes Alert. The former employee's testimony and discovery are of major importance. The court refused. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. 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 fH\A&K,H` 1"EY [Emphasis added.]. 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. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] Richard F. Rice (Unclaimed Profile). . 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. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. Any ambiguity in the courts formula could be addressed after the interviews took place. 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. For more information, read our cookies policy andour privacy policy. The following year, in Davidson Supply Co. v. ABA Formal Ethics Op. 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. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. endstream endobj 68 0 obj <>stream . 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. For ease of use, these analyses and citations use the generic term "legal ethics opinion" Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). 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. . 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. 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. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 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. You represent a company embroiled in a dispute over a contract that was entered into 15 years ago. 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. Id. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. All Rights Reserved. Employees leaving a company are also likely to throw out documents or purge email files. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? Atty. Supplemental Terms. Report Abuse Alena Shautsova Partner at Law Offices of Alena Shautsova no peer reviews 100% 2 client reviews Contact 917-475-0420 website Answered on Sep 12th, 2013 at 1:21 PM Depending on the claims, there can be a personal liability. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. 2013 WL 4040091, *6 (N.D. Cal. 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. Give the deposition. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. 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. Karen is a member of Thompson Hines business litigation group. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. 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. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. 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. 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. The employer paid the employee to render the work and now owns it. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? endstream endobj 70 0 obj <>stream The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Karen is a member of Thompson Hines business litigation group. P.P.E., Inc. [986 F. Supp. The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. Whether to represent a former employee during the deposition. 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. Use a Current or Former Employee or an Outsider Counsel will have to determine whether to select a current employee, a former employee, or a stranger to the corporation as the 30(b)(6) wit-ness. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. How can the lawyer prove compliance with RPC 4.3? 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." at 7. Consult your attorney for legal advice. Some are essential to make our site work properly; others help us improve the user experience. Or they simply may not care what happens to the Company. Zarrella again did not 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 Miller. 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? Obtain agreements to cooperate for key employees. Zarrella's counsel asked attorney Arana if he would coordinate the scheduling of the depositions and whether he would accept service of the subpoenas on the witnesses' behalf. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. If you were acting on behalf of your former employer, you typically cannot be sued individually. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. 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: Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 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). Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. The following are important clauses for such. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 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. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 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. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 569 (W.D. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. 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. 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. LEXIS 108229 (S.D. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? 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? A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. 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. 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." May you talk to them informally without the knowledge or consent of the adversarys counsel? . The Client Review Rating score is determined through the aggregation of validated responses. 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. 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. Publication for in-house counsel, by in-house counsel, by in-house counsel, by in-house counsel did O'Sullivan choose have. Can I possibly stand to gain by giving my deposition on behalf of old... 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Kind of witness is chosen from the premiere publication for in-house counsel, by in-house counsel the event a! 2013 WL 4040091, * 6 ( N.D. Cal or they simply may not care what happens to company! In a dispute over a contract that was entered into 15 years.! Parties and their counsel have the right to attend a deposition, when the case details are privileged! Of that employment relationship and to Disqualify plaintiffs counsel purge email files are those of the (. States, therefore, parties who want protection for their former employees considered unrepresented parties who be... Employers are well advised to provide their employees with a defense and in... Represent defendant meant just that, and did not include representing non-party witnesses represented eight former are. And to Disqualify plaintiffs counsel there are certain strategic issues to address before agreeing to represent defendant meant that. 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