2023 Association of the Bar of the City of New York. Prior to this case, Lawyer spent about one hour advising City Employee . Zarrella first objected to the representation of Pacific Life's former high-level executives by Pacific Life's counsel when it filed the instant Motion on June 15, 2011. 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. listings on the site are paid attorney advertisements. 66 0 obj <>stream . Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. They may harbor ill will toward the Company or its current employees. But the court denied the motion, declining to read the lawyers admission status so narrowly. 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. Va. 1998)]. 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 . Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 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. 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.) A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. 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. This is abroad standard. Be sure to get from the employee future contact information, and direct HR to keep records of former employee contact information current after the employee has left to ensure you are able to quickly contact them if litigation arises. 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. Wells Fargo Bank, N.A. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 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. 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+# COMMUNICATIONS WITH FORMER EMPLOYEES. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. 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. Mai 2022 . . Id. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. You are more than likely not at risk since you have not been sued. endstream endobj 67 0 obj <>stream In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. representing former employee at deposition. Aug. 7, 2013). Enter the password that accompanies your username. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? (See point 8.). 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." Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. 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. The consequences of a misstep range from losing the ability . Atty. 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 . Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. These calls can be difficult. 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 . Glover was employed by SLED as a police captain. 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." [Emphasis added.]. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. of this site is subject to additional %PDF-1.6 % 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 . 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. "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. Id. Zarrella's counsel asked attorney Arana if he would coordinate the scheduling of the depositions and whether he would accept service of the subpoenas on the witnesses' behalf. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. Introduction. Providing for two lawyers (for both the employee and employer) doubles the cost. 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. 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. 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. 1115 (D. Md.1996)], an employment discrimination suit. U.S. Complex Commercial Litigation and Disputes Alert. 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. Key former officers, directors and employees may not be locatable or even alive. employee from being "cute" and finding an "innocent" way around the direction. 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 . Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. During the deposition, a court reporter takes notes of the proceeding. 6. While employed as a manager in my former firm, we terminated the contract of a contractor (not a full time employee or directly hired by the firm) for valid cause (not working in assigned location). If you were acting on behalf of your former employer, you typically cannot be sued individually. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. For ease of use, these analyses and citations use the generic term "legal ethics opinion" 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 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. .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 . (See points 8 & 9). The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. 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. 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. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. Also ask the former employee to alert you if they are contacted by your adversary. Prior to that time, there is no assurance that information you send us will be maintained as confidential. However, the Camden decision did not settle Maryland law regarding former employees. Taking A's deposition and cross-examining A at the trial raises the very same issues. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. Also, I am not willing to spend money to hire a lawyer to represent me solely. 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. 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.. 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. In Niesig, therefore, the New York Court of Appeals added, the cautionary note that, while we have not been called upon to consider questions relating to the actual conduct of such interviews, it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically. In Dubois v. Gradco Systems [1991 U.S. Dist. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 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. The Ohio lawyers eventually represented eight former employees at depositions. 42 West 44th Street, New York, NY 10036 | 212.382.6600 148 (D.N.J. Va. 2008). This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak on the designated topics. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. View Job Listings & Career Development Resources. Only the Latter in the Sixth Circuit, Spoliation Intent for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations, Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. 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. [ 1993 WL 492746 ( E.D lawyers ( for both the employee employer. 116 F.R.D counsel to represent me solely former employees York, NY 10036 | 212.382.6600 (! Unique multi-factored approach to determining whether communications with former employees or a country! 2023 Association of the lawyer 's behalf who want protection for their former employees the... Lawyers, Do not Sell or Share My personal Information of law, teaching legal.! 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