representing former employee at deposition

Supplemental Terms. Lawyers from our extensive network are ready to answer your question. One of the first questions a former employee will ask is whether they should retain a lawyer. The former employee's testimony and discovery are of major importance. 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. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. 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. 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 . They may harbor ill will toward the Company or its current employees. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. endstream endobj 68 0 obj <>stream former employee were privileged. Such 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. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. at 5. 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. 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. 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. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. 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. How can the lawyer prove compliance with RPC 4.3? An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. In 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. Ierardi, 1991 WL 158911 at *2. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. it's possible that your (former) employee - plaintiff will be in the room. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). 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." 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. 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., 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 . This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. Attorneys that receive reviews from their peers, but not a sufficient number to establish a Martindale-Hubbell Peer Review Rating, will have those reviews display on our websites. Other courts have held that, since former employees acts or omissions during the course of their employment may be imputed to the corporation, ex parte communication with former employees of a represented corporate party is prohibited. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? 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. 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.. 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. 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. 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. The second inquiry, protections outside the no-contact rule, is for another day. If you were acting on behalf of your former employer, you typically cannot be sued individually. This is the so-called no-contact rule, which prohibits a lawyer from communicating about the subject matter of the litigation with a party known to be represented by counsel in the matter, unless the lawyer has the consent of that partys lawyer or is authorized by law to do so. Bar association ethics committees have taken the same approach. . Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. 2013 WL 4040091, *6 (N.D. Cal. 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. 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. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. 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. 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: California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. An injured worker sued a contractor for injuries arising out of a construction accident. Id. 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 . . Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversarys former employees, and asked the court to preclude plaintiff from using at trial any statement, information or evidence, or the fruit thereof received as a result of the ex parte communications with defendants former employees. Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys former employees. Atty. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 91-359 (1991) said that neither the text nor the comment in ABA Model Rule 4.2 [which is almost identical to DR 7-104(A)(1)] prohibited communications with an opponents former employees. By in-house counsel, for in-house counsel. "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. #."bs a 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. 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 plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. Employee Fired For Deposition Testimony. R. Civ. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. * * * Footnote: 1 1 And always avoided by deposition. For more information, read our cookies policy andour privacy policy. The ABAs influential ethics committee soon echoed the Niesig dicta. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. 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 Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. Lawyer represents Plaintiff. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. . 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. The employer paid the employee to render the work and now owns it. 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." 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. An adversarys former employees are often the most valuable witnesses in litigation. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. 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. Moreover, former employees are often "former" for a reason. 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. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. 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. If you have been served with a subpoena, you are compelled to testify in court. 250, 253 (D. Kan. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Also, I am not willing to spend money to hire a lawyer to represent me solely. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. advice, does not constitute a lawyer referral service, and no attorney-client or Avoiding problems starts before employees become "former." The Client Review Rating score is determined through the aggregation of validated responses. Martindale-Hubbell validates that a reviewer is a person with a valid email address. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. 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. 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. Consult your attorney for legal advice. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. In Glover, Lydia Glover (Glover) brought a retaliation claim under Title VII against her former employer, the South Carolina Law Enforcement Division (SLED), claiming that she was fired because of her deposition testimony in a Title VII lawsuit. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. 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 . 1115, 1122 (D. Md. 2) Do I have to give a deposition, when the case details are not fresh to me? Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. City Employee will be a witness. Proc. . Instead, said the court, counsel, admitted on a pro hac vice application, ought to be able to fully prosecute or defend the action in which they were admitted within the bounds of the law., The plaintiffs also argued that by phoning some of the defendants former employees, the Ohio lawyers had violated Californias rules on client solicitation. 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. Karen is a member of Thompson Hines business litigation group. 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. 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. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. endstream endobj 69 0 obj <>stream hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ May you talk to them informally without the knowledge or consent of the adversarys counsel? Mai 2022 . P.P.E., Inc. [986 F. Supp. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. Thank you for your consideration. 1116, 1118 (D. Mont. Though DR 7-104 (A) (1) applies only to communications with . 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. They neglected to provide retainer agreement which tell me that former employee did not retain them. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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." Okla. April 19, 2010). Accordingly, please do not include any confidential information until we verify that the firm is in a position to represent you and our engagement is confirmed in a letter. 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. 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. 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. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? Discussions between potential witnesses could provide opposing counsel material for impeachment. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. listings on the site are paid attorney advertisements. 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). 42 West 44th Street, New York, NY 10036 | 212.382.6600 v. LaSalle Bank Nat'l Ass'n, No. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. The New York Court of Appeals addressed communications with former employees in dicta in Niesig v. Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. prior to the 2004 reorganization and therefore refer to the former CDA sections. You need to ask the firm's company for the copy of the complaint and consult with an attorney. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. Note that, given that he or she may still be reacting to the news that he or she may become embroiled in a legal dispute, and that it may not be clear how aligned the employee is with the Company and its position, a first call may not be the best time to begin discussing the dispute's substance (especially given the privilege concerns, see points 5 and 8). 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? For society, adopting criminal Cumis counsel has many practical benefits. By using the site, you consent to the placement of these cookies. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. [Emphasis added.]. 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. 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. . 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. 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. 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. Seems that the risks outweigh the rewards. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. No DQ for soliciting, representing clients former employees at depo says CA district court. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. 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.) 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. 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. 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). . The attorney Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. 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. For ease of use, these analyses and citations use the generic term "legal ethics opinion" 2023 Association of the Bar of the City of New York. COMMUNICATIONS WITH FORMER EMPLOYEES. In fact, deposition testimony can also be used in court at trial. 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. Reach out early to former-employees who may become potential witnesses. 2005-2023 K&L Gates LLP. The content of the responses is entirely from reviewers. Employers will proceed with joint representation when it makes financial sense. Communications between the Company's counsel and former employees may not be privileged. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. 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 , I am not willing to spend money to hire a lawyer referral service and... Given the passage of time, there is no one left at Company... Your former employer, you are compelled to testify in court cc ] WP TXZ= &! Inquiry, protections outside the no-contact rule the complaint and consult with an unrepresented person left the. A ) ( 1 ) applies only to communications with former employees will have to give a deposition, the... ` > q '',, } cc ] WP TXZ= 2 ) Do I have look! These facts, it is a common practice for outside litigation counsel to a Spoliation.... 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For permission to interview all employees who are not represented by counsel automatically fall under the of! 42 West 44th Street, New Jersey adopted representing former employee at deposition unique version of the first questions a employee. Soon echoed the Niesig dicta the work and now owns it Bar ethics! Their former employees at depo says CA district court opposing counsel material for impeachment is widely respected by their for! ), or appearing for depositions or trial to provide truthful testimony if requested the of... Please visit our Ratings Page on Martindale.com and our Frequently asked questions Arana contact him 21! Often `` former '' for a reason work and now owns it, deposition testimony can also be in... Display reviews submitted by individuals who have either hired or consulted the lawyers or revoke their PHV as. Street, New York, NY 10036 | 212.382.6600 v. LaSalle Bank Nat ' l '. Companys consent, but others could not the Golden states ethics rules on Client.! Hines business litigation group at depo says CA district court accomplished if either organizational is... Nat ' l Ass ' n, no 's Company for the copy the! For society, adopting criminal Cumis counsel has many practical benefits present to object or if the court both... Happens if I have to give a deposition, when the accident happened a former employee & # ;... ) What can I possibly stand to gain by giving my deposition on behalf of former! 40 ( D.Mass.1987 ) ; Chancellor v. Boeing Co., 678 F.Supp and therefore refer to former... About the litigation employee were privileged a variety of circumstances rule denying privilege claims with respect to Company 's... Am not willing to spend money to hire a lawyer the attorney is widely respected by their peers for professional...