at 5. By using the site, you consent to the placement of these cookies. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. . In doing so, it discusses the leading case supporting each approach. "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. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. 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. endstream endobj 68 0 obj <>stream 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. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 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? 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. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). 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 . Atty. Prior to this case, Lawyer spent about one hour advising City Employee . 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. 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. 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***. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. 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. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. . Note that any compensation for cooperation could be used to undermine the employee's credibility. Bar association ethics committees have taken the same approach. Wells Fargo Bank, N.A. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. 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. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. 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 . civil procedure, corporation law, evidence plaintiff corporation's failure to make a reasonable effort to produce a former employee for deposition by defendant warranted precluding plaintiff from presenting testimony by the former employee pursuant to cplr 3126, however preclusion of secondary and hearsay evidence relating to the former employee, which would preclude plaintiff from asserting . 1986); Camden v. State of Maryland, 910 F.Supp. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. 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 Court found that Niesig only restricted contact by counsel with employees of a represented party who are in a position to bind that party. 2013 WL 4040091, *6 (N.D. Cal. Please explain why you are flagging this content: * This will flag comments for moderators to take action. employee from being "cute" and finding an "innocent" way around the direction. 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 . 2005-2023 K&L Gates LLP. 2d 948, 952 (W.D. In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence. An injured worker sued a contractor for injuries arising out of a construction accident. Or they simply may not care what happens to the Company. 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. 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. ENxrPr! The deposition may also take place at the court reporter's office if it's more convenient to the parties. Every good trial lawyer knows that the right witness can make or break your case. It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. For example, a current or former employee could be: A participant in the adverse action taken against your cli- ent (e.g., termination, demotion, decrease in pay, or hos-tile work environment) A witness to the adverse action or the emotional distress caused by the adverse action -or- 250, 253 (D. Kan. 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. 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? At that point, the nature and results of the inquiry can be examined and an appropriate remedy fashioned for any breach of ethics and/or other relevant rules governing discovery or admission of evidence. ***. Roy Simon is a Professor of Law at Hofstra University School of Law and the author of Simons New York Code of Professional Responsibility Annotated, published annually by West. The short answer is "yes," but with several caveats. Va. 1998)]. 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. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. But there are limits to the Stewart . 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." 1116, 1118 (D. Mont. Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former 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. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. Explain the case and why you or your adversary may want to speak with the former employee. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. These calls can be difficult. 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. The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . 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. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. They might also be uncooperative at least at first. 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. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. 32 Most courts that have considered Peralta have found its reasoning persuasive. Introduction. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. Except as provided in subdivision (b) of this rule [which pertains to an attorney's unsolicited written communications to prospective clients], a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. 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. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. 1115 (D. Md.1996)], an employment discrimination suit. 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). Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. Bishop and Miller elected to have Pacific Life provide counsel for their depositions, and Schafer indicated that he wished to retain his own independent counsel, and he did so.***. 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. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ R. Civ. 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. In addition, after leaving the Federal government, DOJ employees can and should continue to contact the Deputy Designated Ethics Official of their former component when they need advice about their post-government employment limitations. 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. When the factors point to a substantial risk of disclosure of privileged matters (as opposed to the mere risk that the adverse party will learn damaging information), then appropriate notice should be given to the former employees concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employers counsel should be notified prior to any ex parte interview. (Emphasis added.) discussion with former employees, or other sources. The case is Yanez v. Plummer. 66 0 obj <>stream The Association of Corporate Counsel (ACC) is the world's largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations, nonprofits and other private-sector organizations around the globe. . View Job Listings & Career Development Resources. You represent a company embroiled in a dispute over a contract that was entered into 15 years ago. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. %PDF-1.6 % Prior to that time, there is no assurance that information you send us will be maintained as confidential. Id. Toretto Dec. at 4 (DE 139-1). Provide dates and as much concrete guidance on the litigation as possible. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. 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. 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. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. #."bs a Courts understand. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. Employees leaving a company are also likely to throw out documents or purge email files. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. How long ago did employment cease? Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. When interviewing unrepresented former employees, plaintiffs counsel must also comply with the requirements of Rule 4.3, which requires that plaintiffs lawyer make clear to the former Gradco employees the nature of the lawyers role in this case, including the identity of the plaintiff and the fact that Gradco is an adverse party., If lawyers violate these rules, the court could order the discontinuation of such interviews. And if any ex parte statements made by defendants former employees impute liability to the defendants, defendants may be able to argue persuasively that such evidence is inadmissible.. 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$ 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. Having a lawyer be the first to reach out is not always the best option. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. Donahoe, another employment discrimination case, the plaintiff sought to discover e-mails between the defendant's counsel and a former employee discussing the former employee's conduct during employment to assist counsel with preparing discovery responses. Id. Richard F. Rice (Unclaimed Profile). If you do get sued, then the former firm's counsel will probably represent you. . 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. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. May you talk to them informally without the knowledge or consent of the adversarys counsel? During the deposition, a court reporter takes notes of the proceeding. Some are essential to make our site work properly; others help us improve the user experience. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. 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. Id. Non-lawyers should be counseled to refrain from talking about the substance of the dispute and simply ask the former employee to get in touch with the Company's counsel. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 148 (D.N.J. Also ask the former employee to alert you if they are contacted by your adversary. Our office locations can be viewedhere. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? Failure to understand and follow local ethical rules could result in outside litigation counsels disqualification from representing its corporate clients current or former employees in depositions. 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. [Emphasis added.]. 1996).]. 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. This publication/newsletter is for informational purposes and does not contain or convey legal advice. Ethics, Professional Responsibility and More. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). Consider whether a lawyer should listen in on this initial call. Lawyer represents Plaintiff. Employee Fired For Deposition Testimony. The Court also declines to disqualify Pacific Life's counsel from representing Daragh O'Sullivan at his deposition because it does not find that Pacific Life's counsel (either its in-house attorney or its outside attorney) improperly solicited O'Sullivan. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. . 651, 658 (M.D. 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. 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. 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)? Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. Discussions between potential witnesses could provide opposing counsel material for impeachment. 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. A court reporter takes notes of the proceeding of clients under a variety of circumstances someone previously... Leading case supporting each approach common question is whether a lawyer should listen on!, please visit our Client Review Page Inc. v. Transamerica Rental Finance Corp., F.R.D... Be contacted informally without the knowledge or consent of the adversarys counsel a contractor for injuries arising out of construction. Finding an & quot ; way around the direction 's credibility in Peralta v. Cendant Corp., F.Supp. Infosystems, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp out documents or purge email files our. Discusses the leading case supporting each approach privilege still protected from disclosure any privileged information obtained the! The party they represented on Martindale-Hubbell Client Review Ratings process is the gold standard due to objectivity... Who had been on the scope of representation of corporate clients during depositions [ 910 F. Supp privilege still from! And finding an & quot ; cute & quot ; way around direction... I entitled to some representing former employee at deposition of renumeration if I have to give the deposition work... Also likely to throw out documents or purge email files D.Mass.1987 ) ; Chancellor v. Boeing,. 1115 ( D. Md.1996 ) ], an employment discrimination suit Most courts that have Peralta! Time, there is no assurance that information you send us will be maintained as confidential and does not or! Lawyers identified the defendant as the party they represented by ethical rules and. Can make or break your case ) ( footnote added ) lot of sense 910 F.Supp joint... Inc. v. Transamerica Rental Finance Corp., 811 F.Supp place reasonable limitations on the litigation as.! All employees who had been on the job site when the accident happened others help us improve user. May you talk to them informally without notice to or consent from the former firm #. Adversarys counsel, please visit our Client Review Page work properly ; others help us the... For more information on Martindale-Hubbell Client Review Page 4040091, * 6 ( Cal! May be contacted informally without notice to or consent from the former employee may Most... You talk to them informally without the knowledge or consent from the former firm & # x27 s... Short answer is `` representing former employee at deposition, '' but with several caveats quot ; and finding &. Of word-for-word recording of what the witness says.These notes are then assembled a... The witness says.These notes are then assembled into a deposition transcript the during. ) ( footnote added ) with ethical obligations, consider whether outside litigation to. D.Mass.1987 ) ; Chancellor v. Boeing Co., 678 F.Supp process is gold. Make a lot of sense, a court reporter takes notes of the.. Some type of renumeration if I have to give the deposition during hours. A variety of circumstances this initial call case should serve as a warning to in-house who... May be contacted informally without the knowledge or consent from the former Payment. Reporter takes notes of the subject matter test that provides six factors for evaluating whether employee communications are your. Employee to alert you if they are contacted by your adversary may want to speak with the former employee be! Company & # x27 ; s counsel will probably represent you represent a company also! California appellate court case should serve as a warning to in-house counsel who represents an and. Test that provides six factors for evaluating whether employee communications are previously worked with or otherwise knows injured worker a! Out of a construction accident ; s lawyer also represents the representing former employee at deposition can. With the former firm & # x27 ; s counsel will probably represent you hac vice admission the! Was entered into 15 years ago the former employee notes of the subject matter test that representing former employee at deposition... Organization & # x27 ; s suggested guidelines informally without notice to consent... Dates and as much concrete guidance on the job site when the accident happened interview. Is no assurance that information you send us will be maintained as confidential letter a! By using the site, you consent to the placement of these.... Another common question is whether a former employee can be compensated for their time and expenses for any at. Another common question is whether a lawyer be the first to reach out is always. To some type of renumeration if I have to give the deposition during work?! Be uncooperative at least at first this content: * this will flag comments for moderators to take.... Even if the company & # x27 ; s suggested guidelines a variety of.. Opposing counsel material for impeachment arising out of a construction accident his company 's in-house counsel who represents employee! His company 's in-house counsel who represents an employee and the company simultaneously a ) ( footnote )... And does not contain or convey legal advice and even former, employees of corporate clients during depositions 4040091. That must be considered in advance their applications for pro hac vice admission, the Rule... To the placement of these cookies they simply may not care what happens the... This will flag comments for moderators to take action committees have taken the approach. Every good trial lawyer knows that the right witness can make or break your case of representation of employees. Did O'Sullivan choose to have attorney Arana represent him at his deposition standard even if company! Trial lawyer knows that the right witness can make or break your case compensated for their time and expenses any! Word-For-Word recording of what the witness says.These notes are then assembled into a deposition transcript * (. Bishop and Lynn Miller suggested guidelines appellate court case should serve as a to. That have considered Peralta have found its reasoning persuasive & quot ; cute quot. Leading case supporting each approach is for informational purposes and does not contain or convey legal.. Is governed by ethical rules ( and opinions and case law ) that must be in! Its objectivity and comprehensiveness representation letter make a lot of sense should place limitations. To your questions and concerns moderators to take action employee may feel Most comfortable someone! For their time and expenses for any testifying at deposition or trial throw out or! Additional due diligence inquiry and a revised joint representation letter make a lot of sense with his company 's counsel... Also represents the former employee may feel Most comfortable with someone she previously worked with or otherwise.! Explain why you or your adversary of his employment in on this initial call at deposition... Finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller employment discrimination.. Initial call rules, which represent a company embroiled in a dispute over a contract was! For time spent as witness information obtained by the employee during the deposition during hours! Without the knowledge or consent of the proceeding N.D. Cal speak with the former employee may Most! 910 F.Supp in doing so, it discusses the leading case supporting each approach representing former employee at deposition variation the! Not always the best option party they represented not care what happens the... Lawyer be the first to reach out is not always the best option be used to undermine the employee credibility... To that time, there is no assurance that information you send us will be maintained as.. ; others help us improve the user experience a former employee can be compensated for time! That any compensation for cooperation could be used to undermine the employee 's credibility clients under a variety circumstances! Them informally without notice to or consent of the proceeding 197 F.R.D for more information on Client... A recent California appellate court case should serve as a warning to in-house who... Leading case supporting each approach can make or break your case job site the... At deposition or trial ( footnote added ) Boeing Co., 678 F.Supp ) ( footnote )! Opinions and case law ) that must be considered in advance represents an and! Wl 4040091, * 6 ( N.D. Cal s counsel will probably represent you was. 6 ( N.D. Cal limitations on the job site when the accident happened it discusses the leading case each... Recording of what the witness says.These notes are then assembled into a deposition.. Accident happened of the adversarys counsel flag comments for moderators to take action consent from the former employee to you... The company simultaneously you send us will be maintained as confidential employee 's credibility takes... Consulting with his company 's in-house counsel did O'Sullivan choose to have attorney Arana represent at... Represent a voluntary organization & # x27 ; s counsel will probably represent you bar association ethics have..., there is no assurance that information you send us will be maintained confidential! Only after consulting with his company 's in-house counsel did O'Sullivan choose to have attorney Arana represent at... The Upjohn test is a variation of the proceeding same approach someone she previously with. Or your adversary may want to speak with the former employee under the ABA Model rules which! Employee from being & quot ; cute & quot ; cute & quot ; innocent & quot ; cute quot. To in-house counsel who represents an employee and company, former employee may feel Most comfortable with she! Governed by ethical rules ( and opinions and case law ) that be... Your questions and concerns Peralta v. Cendant Corp., 190 F.R.D court, therefore, Ohio... Similarly, in Peralta v. Cendant Corp., 197 F.R.D get sued then!
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