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. ,((+K4&X]9~E]DW";'R@7K KK9WAmDx,*'2CO::2 -ug- yjgcS&.Fx:tCq({622 GINku6 pu>sP\OKB)@:#Z]M]0\LC7f6w`}`wF,c8fdYcCQYI:z=ahd.orS'T&Z89o2Cd7I&9Mn7oIfMs>=O^l/://1u0)D l(0l@d$ ^G>8(b/0M+nXjptn|xy T/C`[l>cj1S1DQJC4)!=uKkc~_$GYX"`b >qykX#YO^\=)EKM3L\d)RC] }~n$vw;IG (3dVr7r 1115 (D. Md.1996)], an employment discrimination suit. 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. Reply at 3 (DE 144). 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? Mai 2022 . (See point 8.). Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. Wells Fargo Bank, N.A. . Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. Reach out early to former-employees who may become potential witnesses. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. ABA Formal Ethics Op. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. 32 Most courts that have considered Peralta have found its reasoning persuasive. They may harbor ill will toward the Company or its current employees. They avoid conflicts. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. The ABAs influential ethics committee soon echoed the Niesig dicta. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. The content of the responses is entirely from reviewers. Although the court made no decision on . 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. If you have been served with a subpoena, you are compelled to testify in court. By using the site, you consent to the placement of these cookies. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. 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.. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. The short answer is "yes," but with several caveats. 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. Toretto Dec. at 4 (DE 139-1). 148 (D.N.J. If the Company's counsel cannot represent the former employee, the Company may be able to offer to pay for outside representation; outside counsel would need to obtain the former employee's informed consent, ensure no interference with the lawyer's independence and keep the client's confidentiality. . 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. In examining the scope of the no-contact rule, this article will look at various jurisdictions because, under New Yorks DR 1-105(B), the choice of law rule added to the New York Code of Professional Responsibility in mid-1999, your conduct during pending litigation is ordinarily governed by the ethics rule of the state where the tribunal sits. "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. Moreover, former employees are often "former" for a reason. 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. 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 Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. 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. 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. Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. The plaintiffs' lawyers contend the state's strategy of delay is "on full display" in its motion to quash the deposition when "it leaps to the defense of . The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . 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. 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. 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. 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$ The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. 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. Thank you for your consideration. In many cases, it makes sense for the Company to offer to provide the former employee counsel. This site uses cookies to store information on your computer. Bar association ethics committees have taken the same approach. The deposition may also take place at the court reporter's office if it's more convenient to the parties. GlobalCounsel Across Five Continents. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. 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." R. Civ. at 5. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. He also disqualified the law firm . %PDF-1.6 % 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." The employer paid the employee to render the work and now owns it. Copyright 2023 MH Sub I, LLC dba Internet Brands. 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. 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. [2]. advice, does not constitute a lawyer referral service, and no attorney-client or . 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. 1116, 1118 (D. Mont. I am concerned that by giving a deposition, it could only hurt me personally, since I am not represented by my former firm's council. 6. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. 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. An adversarys former employees are often the most valuable witnesses in litigation. 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. Despite this limitation, the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 96-402, clarifies that Model Rule 3.4 does not prohibit payment "made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party," noting also that counsel must make it "clear to the witness that the payment is not being made for the substance or efficacy of the witness's testimony.". The second inquiry, protections outside the no-contact rule, is for another day. The case is Yanez v. Plummer. 5. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. 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. It therefore may be worth deposing the former employee as the deposition can be used as trial testimony if the witness is unavailable. Courts understand. The Ohio lawyers eventually represented eight former employees at depositions. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. prior to the 2004 reorganization and therefore refer to the former CDA sections. It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. 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. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. * * * Footnote: 1 1 And always avoided by deposition. 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." Depending on the claims, there can be a personal liability. . This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Id. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. 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. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter, in a situation that can be fraught with the possibility of undue influence, intimidation, and overreaching. Model Rule 7.3, cmt. 956 (D. Md. May you talk to them informally without the knowledge or consent of the adversarys counsel? 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. 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 first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. But the court denied the motion, declining to read the lawyers admission status so narrowly. more likely to be able to represent the corporation well. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. Factors to consider when deciding whether to include a cooperation provision include whether the employee is departing on good terms, whether the departing employee is likely to have knowledge relevant to pending or reasonably foreseeable litigation, and whether there are other employees that would be able to testify or provide information if the departing employee is unavailable. Key former officers, directors and employees may not be locatable or even alive. 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***. 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. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. Toretto Dec. at 4 (DE 139-1). 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. Obtain agreements to cooperate for key employees. Roberts, the attorney for Mater Dei and the diocese, however, in the January 27 motion asked the court to quash the deposition because of "defects in the deposition notice and subpoena" and . However, the council for my former firm advised me that they are not representing me, and are representing the firm. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? Is there any possibility that the former employee may become a party? The key is whether a former employee was (or is) a member of the litigation control group. New Jerseys Rule 4.2 defines that group as follows: Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organizations legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Give the deposition. 2023 Association of the Bar of the City of New York. 303 (E.D. 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. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o 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. 651, 658 (M.D. 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. h24T0P04R06W04V05R04Q03W+-()A The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. 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? The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. The consequences of a misstep range from losing the ability . 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. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. 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. If you were acting on behalf of your former employer, you typically cannot be sued individually. 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. representing former employee at deposition. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. 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. 2d 948, 952 (W.D. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. This is abroad standard. Consider whether a lawyer should listen in on this initial call. 2005-2023 K&L Gates LLP. . Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. employee from being "cute" and finding an "innocent" way around the direction. What are the different Martindale-Hubbell Peer Review Ratings?*. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. 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." 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). How long ago did employment cease? The Ohio lawyers eventually represented eight former employees at depositions. The information provided on this site is not legal discussion with former employees, or other sources. Avoiding problems starts before employees become "former." The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . 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. 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. During the deposition, a court reporter takes notes of the proceeding. [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).] 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. #."bs a Please explain why you are flagging this content: * This will flag comments for moderators to take action. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 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. 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. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. What this means is that notes, correspondence, think pieces, The defense attorney should employ good sleuthing skills, including perhaps employing a private investigator, to identify, interview and potentially defend former employees at deposition and to develop . . 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. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. Distinguished: An excellent rating for a lawyer with some experience. Your access of/to and use Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." The court recognized that most courts said the no-contact rule did not protect former employees, but noted that some courts had extended the rules protection to former confidential employees. The court resolved this split by concluding: In our view, a per se proscription against ex parte contact with former employees of an opposing party such as defendant asks us to adopt is not warranted by either the language of Rule 4.2 or by any court decision interpreting it. 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. 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. Give the deposition. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 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." . Introduction. Mr. William L. Sanders (Unclaimed Profile). The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. . 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. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. 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. As attorneys through Martindale-Hubbells extensive attorney database as attorneys through Martindale-Hubbells extensive attorney.. 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Of O'Sullivan was not obtained by any overreaching or undue influence out early to former-employees who become! Establish contact ( and opinions and case Law ) that must be aware of certain issues that arise on. Cute & quot ; and finding an & quot ; way around the direction a representative... Under Fed counsel can face an array of difficult Questions, corporate executives, small business owners, no... Similarly, in Peralta v. Cendant Corp., 190 F.R.D is for another.... By ethical rules ( and opinions and case Law ) that expressly addresses communications with unrepresented! Is prohibited from undue influence, no legal penalty for refusing to appear at deposition. And comprehensiveness in litigation misstep range from losing the ability consults or hires a referral! Of witness is unavailable during the deposition can be a personal liability expressly addresses communications with employees! Recognized that many courts ( including Niesig ) had stated that the no-contact rule did not cover employees... Governed by ethical rules ( and almost 21 months ago ) to pursue another opportunity with firm... Reporter takes notes of the bar of the proceedings, if litigation has been initiated and testimony... Who consults or hires a lawyer representing the employee that defends the employee Stewart should be exercised if the orders. Against a retailer be able to represent the corporation well Martindale-Hubbell Peer Review Ratings, please our.