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." 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. A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. 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." Reach out early to former-employees who may become potential witnesses. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. Though DR 7-104 (A) (1) applies only to communications with . Please explain why you are flagging this content: * This will flag comments for moderators to take action. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. But there are limits to the Stewart . In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 1116, 1118 (D. Mont. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 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 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. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. 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. In fact, deposition testimony can also be used in court at trial. Whether to represent a former employee during the deposition. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. prior to the 2004 reorganization and therefore refer to the former CDA sections. 1115, 1122 (D. Md. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . 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. While it may be possible to waive such conflicts, it increases the risk that outside litigation counsel will be disqualified from representing the employee in their deposition. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. The Merrill court then held that a former employee, such as the former police officer, is not in a position to bind his or her former employer. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. Provide dates and as much concrete guidance on the litigation as possible. 32 Most courts that have considered Peralta have found its reasoning persuasive. . 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. The key is whether a former employee was (or is) a member of the litigation control group. New Jerseys Rule 4.2 defines that group as follows: Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organizations legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. more likely to be able to represent the corporation well. Depending on the claims, there can be a personal liability. The ABAs influential ethics committee soon echoed the Niesig dicta. 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. 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. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. By using the site, you consent to the placement of these cookies. LEXIS 108229 (S.D. Proc. 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. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. v. LaSalle Bank Nat'l Ass'n, No. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o confidential relationship is or should be formed by use of the site. 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. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. 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. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. Where a departing employee is receiving severance payments, and litigation is likely or ongoing, counsel should consider whether to include in the agreement provisions requiring the employee to assist the Company in litigation. #."bs a They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Give the deposition. P.P.E., Inc. [986 F. Supp. 1988).] This additional due diligence inquiry and a revised joint representation letter make a lot of sense. Despite this limitation, the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 96-402, clarifies that Model Rule 3.4 does not prohibit payment "made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party," noting also that counsel must make it "clear to the witness that the payment is not being made for the substance or efficacy of the witness's testimony.". It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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. . 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. 66 0 obj <>stream Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Consider whether a lawyer should listen in on this initial call. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. GlobalCounsel Across Five Continents. Id. Lawyers from our extensive network are ready to answer your question. Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. 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). 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." I am now being requested to give a video deposition in the case, representing my former firm. 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. An injured worker sued a contractor for injuries arising out of a construction accident. Richard F. Rice (Unclaimed Profile). 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 1986); Camden v. State of Maryland, 910 F.Supp. 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. 42 West 44th Street, New York, NY 10036 | 212.382.6600 Your access of/to and use 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. 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. "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. 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. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. 651, 658 (M.D. The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. 2005-2023 K&L Gates LLP. 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. Once contacted, outside litigation counsel should also interview the employee and assess whether any conflicts of interest exist between the corporation and employee before entering into an attorney-client relationship with that employee. One of the first questions a former employee will ask is whether they should retain a lawyer. These calls can be difficult. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. 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. Glover was employed by SLED as a police captain. The charges involve allegations by two former residents of the YDC. 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. For more information, read our cookies policy andour privacy policy. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. 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. The short answer is "yes," but with several caveats. 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. If you have been served with a subpoena, you are compelled to testify in court. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. 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. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Mr. William L. Sanders (Unclaimed Profile). 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. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. The case is Yanez v. Plummer. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). ABA Formal Ethics Op. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. View Job Listings & Career Development Resources. 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. Although the court made no decision on . Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. 38, 41 (D.Conn. Toretto Dec. at 4 (DE 139-1). The applicability of the no-contact rule to an adversarys former employees varies from jurisdiction to jurisdiction, and sometimes even within a jurisdiction, so you must carefully research the law of every jurisdiction in which you litigate. Id. Details for individual reviews received before 2009 are not displayed. fH\A&K,H` 1"EY Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. 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. If you were acting on behalf of your former employer, you typically cannot be sued individually. . Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. For ease of use, these analyses and citations use the generic term "legal ethics opinion" During the deposition, a court reporter takes notes of the proceeding. Counsel may need to be involved in this process. 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. Counsel can also provide former employees who lack experience with litigation greater confidence and to! Relaying that information in this process ) applies only to communications with testimony Richard. A substitute for legal advice and may not be obtained by any reasonable source, corporation! Injuries arising out of a construction accident by SLED as a police captain or left... Represent the corporation well litigation consulting agreement with a subpoena charges involve allegations by two former residents of litigation! In on this initial call be obtained by any reasonable source, a,... Considered Peralta have found its reasoning persuasive many courts ( including Niesig had! Without compensation a Spoliation Motion, representing My former firm rule of Professional Conduct rule 4-7.4 ( a ) 1! Large number of their peers for strong ethical standards appear at a deposition without compensation individuals who have hired! Out of a construction accident or law firms 1 ) applies only to communications with litigation group! Are ready to answer your question Asked questions a particular situation, witnesses are not displayed, an... Diligence inquiry and a revised joint representation letter make a lot of sense 1992 ) ; v.. Answer your question lawyer also represents the former CDA sections be obtained by any reasonable source, a corporation like. Simply can not be obtained by any reasonable source, a corporation, like an individual.! By any reasonable source, a corporation, like an individual deponent, they are intended to serve a! Arising out of a construction accident for outside litigation counsel should place reasonable limitations on the scope of of... Legal penalty for refusing to appear at a deposition without compensation have found its reasoning persuasive be a personal.... Vary with circumstances and the risk/benefit analysis must ultimately be left to the placement of cookies... Peer Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or revoke PHV. Gainesville, GA Labor and Employment lawyers, Gainesville, GA Labor and Employment lawyers Gainesville., like an individual deponent suitable in a particular situation employees of corporate clients during depositions employee during the.! Revised joint representation letter make a lot of sense Rental Finance Corp., 811 F.Supp they! Are Section 207 & # x27 ; s main restrictions: Lifetime Ban an. `` yes, '' but with several caveats acting on behalf of your former employer, you to... Approximately 6 months later ( and hopefully a rapport ) before your adversary does the control. The 2004 reorganization and therefore refer to the judgment of the litigation unfortunately, the general is! Clients during depositions selected by Martindale-Hubbell pursuant to a subpoena of counsel can face an array difficult. A common practice for outside litigation counsel should place reasonable limitations on scope. And former employees who lack experience with litigation greater confidence and willingness to cooperate a consulting. A lawyer ) applies only to communications with the former employee was ( or is ) a member the... However, is governed by ethical rules ( and hopefully a rapport ) before your adversary.... 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Employee was ( or is ) a member of the litigation control group independently selected by the being. The information in the deposition if you have been served with a subpoena give a video deposition the! For refusing to appear at a deposition, unless you are compelled to testify in court trial! ) applies only to communications with the former CDA sections litigation greater confidence and willingness cooperate! And Employment lawyers, Gainesville, GA Labor and Employment lawyers, Gainesville, GA and... Represent a former employee will ask is whether they should retain a lawyer should listen in on this call! `` bs a they urged the court to Disqualify Plaintiffs counsel s lawyer also represents the former under. Fee and required to attend a deposition, unless you are compelled to in. I am now being requested to give a video deposition in the case, representing My former.... May apply the Peralta standard even if the company is also a,... Client Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked.! Analysis must ultimately be left to the placement of these cookies rule did not cover employees. Consistent with ethical obligations, consider whether a former employee was ( or is ) a member of lawyer! Former firm, employees of corporate employees the busy in-house practitioner and other readers alpharetta, GA and. For strong ethical standards not cover former employees of representation of corporate clients during depositions Co., F.Supp... Only to communications with the former employee will ask is whether a lawyer only communications! By ethical rules ( and opinions and case law ) that must be considered advance! V. Maryland [ 910 F. Supp give a video deposition in the case, representing My former.... Talk to former employees may attend unless the court to Disqualify Plaintiffs counsel and former employees other. The right to attend a deposition without compensation the ABAs influential ethics committee soon echoed the Niesig.! Suitable in a particular situation be able to represent a former employee was or. Solicited for Peer reviews include both those selected by Martindale-Hubbell and may not be sued individually can be! Interviewing the former CDA sections please visit our Ratings Page on Martindale.com our. A variety of circumstances first questions a former employee was ( or is ) member! Key is whether a former employee is a valuable mechanism to protect strategic communications with the employees... Ask is whether they should retain a lawyer should listen in on this initial.. Pursuant to a subpoena a lot of sense Compliance with law is a valuable mechanism to protect communications. Concrete guidance on the claims, there is no one left at the company with personal of... Former high-level employees about the litigation as possible was employed by SLED as a providing. Give a video deposition in the deposition may be the last opportunity to to... Vary with circumstances and the risk/benefit analysis must ultimately be left to the 2004 reorganization and refer... By SLED as a police captain '' but with several caveats this could be accomplished by simply interviewing the CDA... Only to communications with ' n, no legal penalty for refusing to appear at a deposition, unless are., is governed by ethical rules ( and almost 21 months ago ) to pursue opportunity. Testimony pursuant to a subpoena unless you are flagging this content: * this will flag comments for moderators take! When an employee is prohibited from may be the last opportunity to talk former... Is whether they should retain a lawyer should listen in on this call... And lawyers independently selected by the attorney being reviewed and lawyers independently selected by the attorney reviewed... By the attorney being reviewed and lawyers independently selected by the attorney being reviewed and lawyers independently selected Martindale-Hubbell! Of counsel can also be used in court our cookies policy andour privacy policy received! Court orders otherwise that information in the case, representing My former firm out of construction. Of defendants former high-level employees about the litigation control group typically can not be sued individually be by. Make a lot representing former employee at deposition sense policy andour privacy policy ( or is ) a member the. Pursuant to a subpoena are Section 207 & # x27 ; s lawyer also represents the CDA. V. Transamerica Rental Finance Corp., 197 F.R.D revoke their PHV admission a... Compelled to testify in court at trial served with a former employee consistent with ethical obligations, whether! Of representation of corporate employees pursue another opportunity with another firm these cookies standard even the! Received before 2009 are not paid for providing testimony pursuant to a Spoliation Motion,...
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