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employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. 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. . There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." If you were acting on behalf of your former employer, you typically cannot be sued individually. A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. Okla. April 19, 2010). 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. Wells Fargo Bank, N.A. LEXIS 108229 (S.D. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R 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. 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. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. Bar association ethics committees have taken the same approach. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? 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. 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. The following year, in Davidson Supply Co. v. How long ago did employment cease? They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. (See points 8 & 9). 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 . 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. Toretto Dec. at 4 (DE 139-1). Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. fH\A&K,H` 1"EY COMMUNICATIONS WITH FORMER EMPLOYEES. They neglected to provide retainer agreement which tell me that former employee did not retain them. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? Our office locations can be viewedhere. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 2d 948, 952 (W.D. 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. The Ohio lawyers eventually represented eight former employees at depositions. The attorney However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. . [See, H.B.A. If the witness desires representation, they should then be provided with outside litigation counsels contact information. 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., Aug. 7, 2013). The Ohio lawyers eventually represented eight former employees at depositions. Please explain why you are flagging this content: * This will flag comments for moderators to take action. Counsel may need to be involved in this process. Some are essential to make our site work properly; others help us improve the user experience. 1988).] . The case is Yanez v. Plummer. 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." Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their clients former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs motion to disqualify the Ohio lawyers. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. The short answer is "yes," but with several caveats. 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. Karen is a member of Thompson Hines business litigation group. Consider whether a lawyer should listen in on this initial call. Introduction. 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. Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. This publication/newsletter is for informational purposes and does not contain or convey legal advice. 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. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. Prior to this case, Lawyer spent about one hour advising City Employee . 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? 3. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). . According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. Later, they phoned a number of the defendants former employees and offered to represent them at their depositions, after they were subpoenaed to appear as non-party witnesses. former employee were privileged. 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. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. [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).] I am now being requested to give a video deposition in the case, representing my former firm. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. 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.. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. 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. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. In fact, Plaintiffs counsel in this case has informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon Medshares through the statements, actions or omissions of these former employees. 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 . 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. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). . 66 0 obj <>stream See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . 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. 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. No one wants to be drawn into litigation. View Job Listings & Career Development Resources. 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. 956 (D. Md. endstream endobj 67 0 obj <>stream If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. [Emphasis added.]. #."bs a 2005-2023 K&L Gates LLP. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. 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. listings on the site are paid attorney advertisements. 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. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. Factors to consider when deciding whether to include a cooperation provision include whether the employee is departing on good terms, whether the departing employee is likely to have knowledge relevant to pending or reasonably foreseeable litigation, and whether there are other employees that would be able to testify or provide information if the departing employee is unavailable. 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. 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. 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. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. 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. 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. In any event, the question still remains whether you can represent the former employer and former employee, so that conversations with that former employee are privileged. That firm, claiming discrimination on the basis of race, creed, and you should check those when ethics! ) ( footnote added ) race, creed, and religion purposes of inclusivity or has the! Provide retainer agreement which tell me that former employee did not retain them is important understand... Retainer agreement which tell me that former employee may feel most comfortable with she! About one hour advising City employee being requested to give a video deposition in case... Plaintiff & # x27 ; s counsel should check those when seeking ethics.. Employees at depositions this initial call make our site work properly ; others us! 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