In many cases, it makes sense for the Company to offer to provide the former employee counsel. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. 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. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. The Court found that Niesig only restricted contact by counsel with employees of a represented party who are in a position to bind that party. Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. 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. endstream endobj 68 0 obj <>stream [See, H.B.A. 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. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 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.. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. However, the council for my former firm advised me that they are not representing me, and are representing the firm. R. Civ. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 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." Prior to that time, there is no assurance that information you send us will be maintained as confidential. Bar association ethics committees have taken the same approach. 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. A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. 250, 253 (D. Kan. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Preparing CRCP 30(b)(6) Deposition . Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. it's possible that your (former) employee - plaintiff will be in the room. . In his Declaration, O'Sullivan advises the Court that he opposes Zarrella's request to disqualify attorney Arana from representing him "since [he] made the decision to seek Mr. Arana's representation voluntarily and after consultation with [his] in-house counsel at John Hancock." Although the court made no decision on . Verffentlicht am 23. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. 1986); Camden v. State of Maryland, 910 F.Supp. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). 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. 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). But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four . But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. 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. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). 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. So, my questions are: 1) Can they attach me to the suit personally, even though I was acting on behalf of the firm when we terminated the contract? And make it easy for the former employee however you can, including by offering to provide legal representation, either through the Company's lawyers or independent counsel, as appropriate. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. The deposition may also take place at the court reporter's office if it's more convenient to the parties. 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. Id. The former employee's testimony and discovery are of major importance. Having a lawyer be the first to reach out is not always the best option. Give the deposition. Employees leaving a company are also likely to throw out documents or purge email files. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. Moreover, former employees are often "former" for a reason. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . 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. Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. 66 0 obj <>stream 1115, 1122 (D. Md. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. 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. Or they simply may not care what happens to the Company. 2023 Association of the Bar of the City of New York. You are more than likely not at risk since you have not been sued. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the 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. 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. Toretto Dec. at 4 (DE 139-1). hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ hZn7@_ @6@5[huy5Xh4HQEz lMOYPtRST>lbnnjovomJo a@s ?o~6/+f3q)D>+kr1~9Zfv5UtQyhTT#(&)$j_46.#c,t}D@dX.ebV42,KrLC{O4>C&p+}csXRl")sQf(nrd#8as-ZhJ7H/`P4p0 |#Z#nuWi6|K>,PyVy4`cpWB(\FGg>Yg\RA## EPa}bW++R1d2!testqzI=cyx}A.4 *s#lX*"]B4Wzv#bY7XWSbeT+# Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. 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). 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. 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.) 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. 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." . P.P.E., Inc. [986 F. Supp. . 956 (D. Md. Retaining counsel for the former employee also enables the Company's counsel to discuss the case with the former employee's counsel without risking disclosing privileged information to a testifying witness. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? 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 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 . Supplemental Terms. Toretto Dec. at 4 (DE 139-1). Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? It is therefore important to establish contact (and hopefully a rapport) before your adversary does. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. 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. 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. Is there any possibility that the former employee may become a party? CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. 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. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. Karen is a member of Thompson Hines business litigation group. "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. 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. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. If you stand to lose some money by taking a day off of work, I suggest that you contact the party (lawyer) who subpoenaed you, and . 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. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 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? Consult your attorney for legal advice. How can the lawyer prove compliance with RPC 4.3? 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. listings on the site are paid attorney advertisements. This is abroad standard. The short answer is "yes," but with several caveats. at 7. 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. Whether to represent a former employee during the deposition. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. 3. Even in the face of Pacific Life's untimeliness argument, Zarrella has failed to proffer any explanation as to why it waited approximately two months from first learning that Pacific Life's counsel intended to represent its former employees, until after Bishop and Miller's depositions were completed and after the discovery deadline had passed, before filing the instant Motion contending that such representation is unethical. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. You should treat everyone . 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. 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. The Ohio lawyers eventually represented eight former employees at depositions. Assessing the likelihood of disclosure would depend upon weighing such factors as: the positions of the former employees in relation to the issues in the suit;, whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise;, the nature of the inquiry by opposing counsel; and, how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.. 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. 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. During the deposition, a court reporter takes notes of the proceeding. Stephen J. Toretto, Pacific Life's in-house counsel, contacted Bishop, Miller, and Schafer [the former executives] and informed them that Zarrella had requested their depositions. GlobalCounsel Across Five Continents. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. For ease of use, these analyses and citations use the generic term "legal ethics opinion" The second inquiry, protections outside the no-contact rule, is for another day. If you do get sued, then the former firm's counsel will probably represent you. fH\A&K,H` 1"EY 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. Donahoe, another employment discrimination case, the plaintiff sought to discover e-mails between the defendant's counsel and a former employee discussing the former employee's conduct during employment to assist counsel with preparing discovery responses. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. But there are limits to the Stewart . Thank you for your consideration. 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. No one wants to be drawn into litigation. It is hard to imagine an opinion that gives less advance guidance to a litigator. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." 6. These resources are not intended as a definitive statement on the subject addressed. Still other courts have based their decisions on the positions held by the former employees, holding that there should be no ex parte communication with former employees who held managerial responsibilities with a represented corporate party. An adversarys former employees are often the most valuable witnesses in litigation. Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. Bishop and Miller elected to have Pacific Life provide counsel for their depositions, and Schafer indicated that he wished to retain his own independent counsel, and he did so.***. The content of the responses is entirely from reviewers. 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? Introduction. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. Any ambiguity in the courts formula could be addressed after the interviews took place. Some are essential to make our site work properly; others help us improve the user experience. Obtain agreements to cooperate for key employees. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. The consequences of a misstep range from losing the ability . 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. Atty. As part of the review process, respondents must affirm that they have had an initial consultation, are currently a client or have been a client of the lawyer or law firm identified, although Martindale-Hubbell cannot confirm the lawyer/client relationship as it is often confidential. Reach out early to former-employees who may become potential witnesses. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Failure to understand and follow local ethical rules could result in outside litigation counsels disqualification from representing its corporate clients current or former employees in depositions. 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. #."bs a 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 . Key former officers, directors and employees may not be locatable or even alive. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. The purpose of a deposition is to obtain answers to the attorney's questions, from a witness, who is sworn in, under oath. v. LaSalle Bank Nat'l Ass'n, No. City Employee will be a witness. 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