deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. Give the deposition. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. Seems that the risks outweigh the rewards. But there are limits to the Stewart . Is there any possibility that the former employee may become a party? Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. 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. 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. 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. "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. 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. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. The court granted the motion. Fla. Sept. 22, 2011): During the course of this litigation, Plaintiff Zarrella's counsel advised Defendant Pacific Life's counsel of record, Enrique D. Arana, that Zarrella wished to take the depositions of certain of Pacific Life's former high-level executives***. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. Id. former employee were privileged. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. 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? Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? [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. GlobalCounsel Across Five Continents. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. By using the site, you consent to the placement of these cookies. All Rights Reserved. During the deposition, a court reporter takes notes of the proceeding. it's possible that your (former) employee - plaintiff will be in the room. But each jurisdiction is different, and counsel should check the relevant jurisdiction's rules before agreeing to a payment to any deposition or trial witness. 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. Okla. April 19, 2010). The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. Details for individual reviews received before 2009 are not displayed. 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., Employee Fired For Deposition Testimony. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. Karen is a member of Thompson Hines business litigation group. Counsel must understand that agreeing to represent a former employee individually for purposes of a deposition may not necessarily protect all communications with that witness under the umbrella of attorney-client privilege. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? U.S. Complex Commercial Litigation and Disputes Alert. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? 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. 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." 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. Such It is therefore important to establish contact (and hopefully a rapport) before your adversary does. 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. There are numerous traps for the unwary in dealing with such witnesses. 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). From Zarrella v. Pacific Life Ins. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. . [See, e.g., Wright by Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 569 (1984); Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030, 1032 (1990).] 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. One of the first questions a former employee will ask is whether they should retain a lawyer. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. They may harbor ill will toward the Company or its current employees. 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? 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. Mr. William L. Sanders (Unclaimed Profile). 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. New York's Rule 3.4(b)(1) explicitly details the kind of compensation permitted for fact witnesses: "reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses." In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . 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. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. 6. 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 . Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. 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 . 42 West 44th Street, New York, NY 10036 | 212.382.6600 1986); Camden v. State of Maryland, 910 F.Supp. . Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. representing former employee at deposition. 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. 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. discussion with former employees, or other sources. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. By in-house counsel, for in-house counsel. They avoid conflicts. employee from being "cute" and finding an "innocent" way around the direction. Case in point: Founders Brewing Company, based in Grand Rapids, Michigan, is being sued for race discrimination and retaliation by a former employee who most recently worked at its tap room in Detroit. The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. 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 Copyright 2023 MH Sub I, LLC dba Internet Brands. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter, in a situation that can be fraught with the possibility of undue influence, intimidation, and overreaching. Model Rule 7.3, cmt. Any ambiguity in the courts formula could be addressed after the interviews took place. Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. Enter the password that accompanies your username. 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. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. Toretto Dec. at 4 (DE 139-1). 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. . "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. 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. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. endstream endobj 69 0 obj <>stream Counsel may need to be involved in this process. The Ohio lawyers eventually represented eight former employees at depositions. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. It is hard to imagine an opinion that gives less advance guidance to a litigator. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. 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. These resources are not intended as a definitive statement on the subject addressed. The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . Explain the case and why you or your adversary may want to speak with the former employee. It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. 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 . 250, 253 (D. Kan. COMMUNICATIONS WITH FORMER EMPLOYEES. 2013 WL 4040091, *6 (N.D. Cal. 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. Martindale-Hubbell validates that a reviewer is a person with a valid email address. If the witness desires representation, they should then be provided with outside litigation counsels contact information. Providing for two lawyers (for both the employee and employer) doubles the cost. 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. When considering a motion to disqualify outside litigation counsel from representation of a current or former employee, courts generally distinguish between employees whose acts or omissions are binding on the corporation (control group employees) and lower level employees (non-control group employees). The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. 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. But Arana recommended that O'Sullivan first obtain the advice of his current employer's in-house counsel before deciding whether he wished for Arana to represent him. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. 2d 948, 952 (W.D. 1115 (D. Md.1996)], an employment discrimination suit. Toretto Dec. at 4 (DE 139-1). The content of the responses is entirely from reviewers. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. 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? An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. Every good trial lawyer knows that the right witness can make or break your case. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. 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. 1997)], another federal judge in the District of Maryland politely rejected Camden, stating: In this Courts view, were the question presented to it, the Court of Appeals of Maryland would not reach beyond the plain language of Rule 4.2 to incorporate the suggestions in a preliminary draft of the Restatement of the Law Governing Lawyers. Id. The ABAs influential ethics committee soon echoed the Niesig dicta. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. 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. As an employee of a company which is a party to a lawsuit, you may be required by your employer to appear for a deposition. 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. Glover was employed by SLED as a police captain. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. LEXIS 108229 (S.D. 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. 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.. Id. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Bar association ethics committees have taken the same approach. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. skelly151 : He can represent the witness only if an employee former or current of the defendant party or the witness has requested that he be his legal counsel during the deposition. The charges involve allegations by two former residents of the YDC. 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. 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 . Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. 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. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. The court refused. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. 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. 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. No one wants to be drawn into litigation. Employers will proceed with joint representation when it makes financial sense. 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 . Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. 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. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. Va. 1998)]. P.P.E., Inc. [986 F. Supp. This rating signifies that a large number of the lawyers peers rank him or her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards. [Emphasis added.]. [2]. Our office locations can be viewedhere. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. Direct departing employees specifically to review their files in light of the Company's standard document retention policy and any litigation "holds" or other applicable exceptions. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. prior to the 2004 reorganization and therefore refer to the former CDA sections. Ierardi, 1991 WL 158911 at *2. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. Zarrella, however, did not then 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 Bishop. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . Prior to this case, Lawyer spent about one hour advising City Employee .
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