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. 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 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. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. Mr. William L. Sanders (Unclaimed Profile). Va. 2008). But there are limits to the Stewart . How long ago did employment cease? deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 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. 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 Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. confidential relationship is or should be formed by use of the site. The former employee's testimony and discovery are of major importance. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? 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. These resources are not intended as a definitive statement on the subject addressed. 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. Enter the password that accompanies your username. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. (See points 8 & 9). employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. Our office locations can be viewedhere. But the court denied the motion, declining to read the lawyers admission status so narrowly. 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 . Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. Consider whether a lawyer should listen in on this initial call. 6. Richard F. Rice (Unclaimed Profile). .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 . 1986); Camden v. State of Maryland, 910 F.Supp. 1996).]. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. 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. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. The following year, in Davidson Supply Co. v. Employee Fired For Deposition Testimony. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. The following are important clauses for such. This is abroad standard. The employer paid the employee to render the work and now owns it. 2023 Association of the Bar of the City of New York. 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. fH\A&K,H` 1"EY Supplemental Terms. 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. 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. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. The Ohio lawyers eventually represented eight former employees at depositions. at 5. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. GlobalCounsel Across Five Continents. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? In fact, Plaintiffs counsel in this case has informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon Medshares through the statements, actions or omissions of these former employees. 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. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] The information provided on this site is not legal Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. 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.. 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 . 1988).] Aug. 7, 2013). 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. 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.. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Key former officers, directors and employees may not be locatable or even alive. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. 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. Lawyers from our extensive network are ready to answer your question. representing former employee at deposition. 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. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. 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. 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. 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. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ He also disqualified the law firm . 2005-2023 K&L Gates LLP. In fact, deposition testimony can also be used in court at trial. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. 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. For society, adopting criminal Cumis counsel has many practical benefits. Co., 2011 U.S. Dist. 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. former employee were privileged. 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. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 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. 3. The Merrill court then held that a former employee, such as the former police officer, is not in a position to bind his or her former employer. 1115, 1122 (D. Md. 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? In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. it's possible that your (former) employee - plaintiff will be in the room. Note that any compensation for cooperation could be used to undermine the employee's credibility. 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.". 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. The test that best balances the competing interests, the court said, is one that defines the word party in the no-contact rule to include three categories of people: corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporations alter egos) or, corporate employees whose acts or omissions in the matter under inquiry are imputed to the corporation for purposes of its liability, or, employees implementing the advice of counsel.. 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. 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. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. They may harbor ill will toward the Company or its current employees. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. Verffentlicht am 23. Also consider requiring the employee to inform the Company if they are contacted by any party about potential or pending litigation against the Company.Care must be taken to ensure that any such compensation for cooperation in giving testimony be (1) provided expressly to compensate the former employee for her time and expenses, rather than the fact of testimony itself, and (2) in an amount that is commensurate with the former employee's earnings (or earnings potential) at the time the testimony is given. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 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. . Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. 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. 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. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Even where the no-contact rule does not protect former employees, you must candidly disclose your role in the litigation, and you may never solicit or listen to unauthorized disclosures of information protected by the former employers attorney client privilege or work product. 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. [Emphasis added.]. No one wants to be drawn into litigation. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V 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. Employees or other non-party witnesses responsibility for the content or accuracy of any review e.g.... 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