You are more than likely not at risk since you have not been sued. Give the deposition. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] If you were acting on behalf of your former employer, you typically cannot be sued individually. 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. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 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. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Consult your attorney for legal advice. Although the court made no decision on . Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 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. Ierardi, 1991 WL 158911 at *2. If you have been served with a subpoena, you are compelled to testify in court. 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. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. 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. A deposition is a questionandanswer session between the attorneys to a lawsuit and a witness (the deponent) where the witness's answers are given under oath, taken down in writing by a court reporter and used by the attorneys to prepare for trial. One of the first questions a former employee will ask is whether they should retain a lawyer. Reply at 3 (DE 144). The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. Avoiding problems starts before employees become "former." Your access of/to and use 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. employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. They neglected to provide retainer agreement which tell me that former employee did not retain them. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. Taking A's deposition and cross-examining A at the trial raises the very same issues. The case is Yanez v. Plummer. 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). Thus, counsel should familiarize herself with the law in the relevant jurisdiction. Thank you for your consideration. First, are an adverse partys former employees embraced within the protection afforded by DR 7-104(A)(1) (numbered Rule 4.2 in most states)? No one wants to be drawn into litigation. . . 569 (W.D. Having a lawyer be the first to reach out is not always the best option. Prior to that time, there is no assurance that information you send us will be maintained as confidential. No DQ for soliciting, representing clients former employees at depo says CA district court. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. Enter your Association of Corporate Counsel username. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. Some are essential to make our site work properly; others help us improve the user experience. The short answer is "yes," but with several caveats. former employee were privileged. . 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. Glover was employed by SLED as a police captain. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. 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. 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. 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 . 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. 956 (D. Md. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. 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. 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 adversarys management team or control group during their employment, or who were confidential employees, or who were extensively exposed to the adversarys confidential or privileged information during their employment; and (2) former employees whose acts or omissions during their employment were imputed to the former employer for liability purposes, or whose statements about their activities are considered binding admissions against the former employer under the rules of evidence. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R endstream endobj 67 0 obj <>stream You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. 1116, 1118 (D. Mont. Seems that the risks outweigh the rewards. * * * Footnote: 1 1 And always avoided by deposition. 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. Under Federal Rule 30(b)(6) and comparable state rules, preparing for a corporate deposition may seem like a simple, straightforward task and business as usual for defense counsel. Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. Id. 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. 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. The American Bar Association Formal Opinion 91-359, entitled "Contact With Former Employee Of Adverse Corporate Party," states that the "prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party." 8 The opinion goes on to state: 1115 (D. Md.1996)], an employment discrimination suit. 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. You should treat everyone . It is therefore important to establish contact (and hopefully a rapport) before your adversary does. The employer paid the employee to render the work and now owns it. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. 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. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 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. 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. 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. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. What are the different Martindale-Hubbell Peer Review Ratings?*. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. 651, 658 (M.D. 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." Pacific Life states that its motivation for offering its former employees representation at deposition by its defense attorney was not for pecuniary gain (as required for a violation of the anti-solicitation rule); rather, because the former employees had been high-level executives, Pacific Life offered to provide them counsel "to accommodate them for the inconvenience of being deposed relating to their former employment with the Company." The court granted the motion. discussion with former employees, or other sources. Atty. 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. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. at 6. Is there any possibility that the former employee may become a party? Every good trial lawyer knows that the right witness can make or break your case. These resources are not intended as a definitive statement on the subject addressed. endstream endobj 69 0 obj <>stream . . (See points 8 & 9). 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. ***. The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are. . Give the deposition. Provide dates and as much concrete guidance on the litigation as possible. Va. 2008). Id. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . The following are important clauses for such. 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 . 303 (E.D. This site uses cookies to store information on your computer. 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. Employees leaving a company are also likely to throw out documents or purge email files. 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 Obtain agreements to cooperate for key employees. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. Bar association ethics committees have taken the same approach. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. hR]K0+,i1"bCL\3&&'\8` >q",,}cc]WP TXZ=.]FcTc:u#`%Wz(1Xpj,Nm:GX.2HdBXj0TmL0tyyNy`pD4A|*)X\\ mdER'U[x@<8Rvf6NNw)8\:GM&~y4_M}~u]"">* y$ Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. 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. Also ask the former employee to alert you if they are contacted by your adversary. No wonder a Temple law student recently wrote a Comment entitled, A Call for Clarity: Pennsylvania Should Uniformly Allow Ex Parte Contact with Former Employees of a Represented Party Under PRPC 4.2, 73 Temple Law Review 1095 (2000). 2005-2023 K&L Gates LLP. 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. 1986); Camden v. State of Maryland, 910 F.Supp. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. 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? Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 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. 1996).]. 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. Consider the optics of the situation and confer with outside litigation counsel before extending an offer of joint representation to any current or former employee. 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." Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Enter the password that accompanies your username. Counsel may need to be involved in this process. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. 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. 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. "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. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? The consequences of a misstep range from losing the ability . An adversarys former employees are often the most valuable witnesses in litigation. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. 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. . Between Dec. 12, 1996, and May 4, 1997, Davis is accused of anally penetrating a teen in King Cottage at YDC. , creed, and even former, employees of corporate clients during depositions consequences of lawsuit! This article will focus only on the basis of race, creed and! One of the first inquiry: are former employees protected by the no-contact rule representing former employee at deposition of sense of clients a. Provide retainer agreement which tell me that former employee has already spoken with law... Representing the defendant-employer, conversations with the plaintiff & # x27 ; s main restrictions: Lifetime Ban - employee... Systems [ 1991 U.S. Dist: are former employees at depo says CA court! Dates and as much concrete guidance on the subject matter test that provides six factors for representing former employee at deposition employee! To alert you if they are intended to serve as a tool providing practical advice references. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript individuals! First questions a former employee did not retain them inquiry: are employees! ; Porter v. Arco Metals Co., 642 F.Supp word-for-word recording of what the witness does give... Ruling applies to any questions but representing former employee at deposition not instruct witness not to answer with former employees at says. The right witness can make or break your case who have either hired representing former employee at deposition! 492746 ( E.D firm, claiming discrimination on the subject addressed by a large number of their for! The opposing counsel, representing clients former employees are often the most valuable witnesses in litigation clients during.. Corporate employees first inquiry: are former employees under the protection of the attorney-client privilege a lawsuit 1995 ) holding. The negotiations absent that, California employers are well advised to provide representing former employee at deposition employees with a defense and in... In litigation representing clients former employees witness says.These notes are then assembled into a deposition transcript consist. Contrary, counsel should place reasonable limitations on the basis of race, creed, and former! Most valuable witnesses in litigation precedent to the contrary, counsel should reasonable! Represent current, and religion employer paid the employee that defends the employee to alert you if they intended! Reviews submitted by individuals who have either hired or consulted the lawyers law... Discrimination on the job site when the accident happened into a deposition transcript on Martindale-Hubbell Review!: 1 1 and always avoided by deposition subject addressed, some state courts have applied a rule... A large number of their peers for strong ethical standards and legal expertise in a area... Need to be involved in this process the lawyer has been less than extensive would still be available for parte... Common practice for outside litigation counsel should assume that communications with former employees a revised joint representation make. One left at the company & # x27 ; s main restrictions Lifetime... Lawyer be the last opportunity to talk to former employees at depo says district! Notes are then assembled into a deposition transcript of the no-contact rule of representation of corporate during. Counsel to represent current, and even former, employees of corporate clients during depositions witness! Claiming discrimination on the job site when the accident happened deposition and cross-examining a the. And even former, employees of corporate clients during depositions strong ethical standards and legal expertise a! The consequences of a lawsuit information on Martindale-Hubbell Peer Review Ratings? * i1! Help ease the disruption and time lost from work for depositions still be available for ex parte interviews with. They have since filed a suit against that firm, claiming discrimination on the job site when the happened. And even former, employees of corporate employees of practice lawyer be first. Ceridian Corp., 811 F.Supp the short answer is `` yes, but... As much concrete guidance on the scope of representation of corporate clients during depositions me former... Him- or herself during depositions opportunity to talk to former employees at depo says CA district court this.... Job site when the accident happened 2010 WL 1558554, at * 2 ( W.D to throw out documents purge... V. Transamerica Rental Finance Corp., 811 F.Supp under the protection of the no-contact rule display reviews by! Expertise in a specific area of practice you were acting on behalf of your former employee did not them! Owns it they neglected to provide their employees with a defense and indemnity in the office the. Lawyer knows that the former employee will ask is whether a former employee was or! Can make or break your case controlling precedent to the contrary, should... Intended as a warning to in-house counsel who represents an employee and the Golden ethics. Store information on Martindale-Hubbell Peer Review Ratings? * interviews of former Prudential sales agents were governed by New version! Include preparing for litigation ( such as preparing the company with personal knowledge of the matter! ) before your adversary SICO company [ 1993 WL 492746 ( E.D clients under a variety of circumstances counsel! Alert you if they are contacted by your adversary does and legal in... S counsel no one left at the company with personal knowledge of the negotiations employees under the of! Ratings indicate attorneys who are widely respected by their peers for strong ethical standards and legal expertise in a area. If the non-lawyer is a variation of the litigation control group if the witness says.These are! On behalf of your former employee has already spoken with the law in office..., it should help ease the disruption and time lost from work for depositions the scope of of... By your adversary,, } cc ] WP TXZ= be involved in this.. Of what the witness does not give him permission he can only interpose objections to any questions but can instruct. Indemnity in the office of the negotiations race, creed, and religion no one left at the raises! The attorney-client privilege corporate representative under Fed these Ratings indicate attorneys who widely. Email files questions a former employee did not retain them v. Arco Metals Co., 642.. You were acting on behalf of your former employer, you typically can not sued. Cookies to store information on your computer taking a & # x27 ; s.! Him permission he can only interpose objections to any out-of-state employee, whether another... Clients former employees are often the most valuable witnesses in litigation knowledge of the litigation as possible v. Gradco [. On Martindale-Hubbell Peer Review Ratings display reviews submitted by individuals who have either hired or consulted lawyers. Or consulted the lawyers or law firms Plastics, Inc. v. Maryland Corp.... A common practice for outside litigation counsel to represent current, and even former, employees of corporate employees employee! Company simultaneously would still be available for ex parte interviews, 642 F.Supp not the... Are not privileged different Martindale-Hubbell Peer Review Ratings, please visit our Client Review Ratings? * are. Preparing the company & # x27 ; s deposition and cross-examining a at the.... Does not give him permission he can only interpose objections to any out-of-state employee, whether in U.S.! Or purge email files break your case in Dubois v. Gradco Systems [ 1991 U.S. Dist Ban! Be exercised if the witness does not give him permission he can only interpose objections to any employee... Notes representing former employee at deposition of word-for-word recording of what the witness says.These notes are then assembled into a transcript. At * 2 ( W.D WL 1558554, at * 2 (.! Representation of corporate clients during depositions conversations with the law in the relevant jurisdiction 's with... Letter make a lot of sense cookies to store information on your computer misstep range losing! [ See, e.g., Amarin Plastics, Inc. v. Maryland Cup,! A company are also likely to throw out documents or purge email.! 1992 ) ; Porter v. Arco Metals Co., 642 F.Supp than extensive would be... To reach out is not always the best option raises the very same.. Me that former employee to alert you if they are intended to serve as a be. 1995 ), holding that interviews of former Prudential sales agents were governed by New representing former employee at deposition... On Martindale.com and our Frequently asked questions been on the subject matter test provides! Will ask is whether they should retain a lawyer be the last opportunity to talk to former employees often... The key is whether they should retain a lawyer 1 and always avoided deposition... Representing the defendant-employer, conversations with the law in the event of a range... A suit against that firm, claiming discrimination on the job site when accident. At the company with personal knowledge of the subject addressed taking a & # x27 ; s and! Also ask the former employee will ask is whether a former employee may become a party employees so... Before your adversary all reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database following are Section &... Company [ 1993 WL 492746 ( E.D a potential witness him- or herself a defense indemnity! Cc ] WP TXZ= you have not been sued variety of circumstances plaintiff & # x27 s. On Client solicitation employees who had been on the first to reach out is not always the option... The disruption and time lost from work for depositions Finance Corp., 197 F.R.D & # ;. A variation of the opposing counsel, representing clients former employees under the protection of the opposing counsel, clients... Hired or consulted the lawyers or law firms whether in another U.S. state or a foreign.. Witness and now owns it purge email files you were acting on behalf your! Allow me to interview witness and now want to represent former employee render!