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. However, the Camden decision did not settle Maryland law regarding former employees. "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. Explain the case and why you or your adversary may want to speak with the former employee. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. 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- 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. If you have been served with a subpoena, you are compelled to testify in court. I am now being requested to give a video deposition in the case, representing my former firm. The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. confidential relationship is or should be formed by use of the site. ***. * * * Footnote: 1 1 And always avoided by deposition. of this site is subject to additional But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. By in-house counsel, for in-house counsel. 1997)], another federal judge in the District of Maryland politely rejected Camden, stating: In this Courts view, were the question presented to it, the Court of Appeals of Maryland would not reach beyond the plain language of Rule 4.2 to incorporate the suggestions in a preliminary draft of the Restatement of the Law Governing Lawyers. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. California's Rule 5-310 limits the reasonable compensation for expenses and lost time relating to "attending or testifying," although this has also been interpreted to include time spent preparing counsel. [See, e.g., Wright by Wright v. Group Health Hosp., 103 Wash.2d 192, 691 P.2d 564, 569 (1984); Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030, 1032 (1990).] endstream endobj 69 0 obj <>stream No one wants to be drawn into litigation. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. [2]. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. v. LaSalle Bank Nat'l Ass'n, No. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. 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. ,((+K4&X]9~E]DW";'R@7K KK9WAmDx,*'2CO::2 -ug- yjgcS&.Fx:tCq({622 GINku6 pu>sP\OKB)@:#Z]M]0\LC7f6w`}`wF,c8fdYcCQYI:z=ahd.orS'T&Z89o2Cd7I&9Mn7oIfMs>=O^l/://1u0)D l(0l@d$ ^G>8(b/0M+nXjptn|xy T/C`[l>cj1S1DQJC4)!=uKkc~_$GYX"`b >qykX#YO^\=)EKM3L\d)RC] }~n$vw;IG (3dVr7r Zarrella's counsel asked attorney Arana if he would coordinate the scheduling of the depositions and whether he would accept service of the subpoenas on the witnesses' behalf. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. 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. The consequences of a misstep range from losing the ability . Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. . In other words, should a court restrict or prohibit communicating with an adversarys former employees or sanction or disqualify lawyers who have already done so based on grounds other than the no-contact rule? Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), among bar ethics committees nationwide, the clear consensus is that former managers and other former employees are not within the scope of the rule against ex parte contacts.] In most states, therefore, parties who want protection for their former employees will have to look beyond the no-contact rule. Seems that the risks outweigh the rewards. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. #."bs a 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." From Zarrella v. Pacific Life Ins. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. 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. Retaining counsel for the former employee also enables the Company's counsel to discuss the case with the former employee's counsel without risking disclosing privileged information to a testifying witness. Courts understand. 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. The attorney It is likely, however, that unless counsel undertakes to represent a former employee in the former employee's individual capacity, communications made in the course of deposition preparation would also fall outside the scope of corporate attorney-client privilege, under Newman. .the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify . swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. Leverage the vast knowledge and experience of your global in-house peers, Connect with hundreds of in-house counsel all over the world, Find your next career opportunity and be prepared for the interview, Learn more about ACCs Seat at the Table initiative, Use this Model to Gauge the Maturity of Your Department's DE&I Functions, Need Help? 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). 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. employee from being "cute" and finding an "innocent" way around the direction. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. Id. U.S. Complex Commercial Litigation and Disputes Alert. But there are limits to the Stewart . Atty. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Even where the no-contact rule does not protect former employees, you must candidly disclose your role in the litigation, and you may never solicit or listen to unauthorized disclosures of information protected by the former employers attorney client privilege or work product. 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: 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. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? View Job Listings & Career Development Resources. The Ohio lawyers eventually represented eight former employees at depositions. Va. 1998)]. This is the so-called no-contact rule, which prohibits a lawyer from communicating about the subject matter of the litigation with a party known to be represented by counsel in the matter, unless the lawyer has the consent of that partys lawyer or is authorized by law to do so. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. The New York Court of Appeals addressed communications with former employees in dicta in Niesig v. Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. First, the representation of a party and an independent witness arguably may be narrowly distinguished from Guillen on the basis that there is at least some prior relationship between a corporate defendant and its former employee, or between the defendant city and its non-party witness/city employee. 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. Reply at 3 (DE 144). 5. it's possible that your (former) employee - plaintiff will be in the room. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. Employees leaving a company are also likely to throw out documents or purge email files. AV Preeminent: The highest peer rating standard. at 6. 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. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Weve pointed out before (here and here) that being admitted pro hac vice requires you to be alert for potential issues that might have an impact on your ability to practice away from home. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. [See, H.B.A. How long ago did employment cease? 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. 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. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. skelly151 : He can represent the witness only if an employee former or current of the defendant party or the witness has requested that he be his legal counsel during the deposition. The 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. All other employees, the court said, may be interviewed informally. Turning specifically to former employees, the Court of Appeals made a sweeping statement: DR 7-104(A)(1) applies only to current employees, not to former employees Thus, in New York, former employees are not protected by the no-contact rule. 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. %PDF-1.6 % It therefore may be worth deposing the former employee as the deposition can be used as trial testimony if the witness is unavailable. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Prior to that time, there is no assurance that information you send us will be maintained as confidential. Mich. 2000), for example, the court declined to extend the attorney-client privilege to a former employee, but noted an exception for communications about subject matter that is "uniquely within the knowledge of the former employee when he worked for the client corporation, such . ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. endstream endobj 68 0 obj <>stream Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. 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. Aug. 7, 2013). Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. The information provided on this site is not legal Id. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. The purpose of a deposition is to obtain answers to the attorney's questions, from a witness, who is sworn in, under oath. 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. discussion with former employees, or other sources. Please explain why you are flagging this content: * This will flag comments for moderators to take action. The court refused. I am concerned that by giving a deposition, it could only hurt me personally, since I am not represented by my former firm's council. You should treat everyone . Id. 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 In many cases, it makes sense for the Company to offer to provide the former employee counsel. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. endobj 39 0 obj >/Filter/FlateDecode/ID[36CE18A8C1A8084D921A73E68A65DB61>]/Index[34 7]/Info 33 0 R/Length 36/Prev 11576765/Root 35 0 R/Size 41/Type/XRef/W[1 2 0 . The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. Co., 2011 U.S. Dist. The following are important clauses for such. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. at 5. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 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. The plaintiffs' lawyers contend the state's strategy of delay is "on full display" in its motion to quash the deposition when "it leaps to the defense of . The content of the responses is entirely from reviewers. Use a Current or Former Employee or an Outsider Counsel will have to determine whether to select a current employee, a former employee, or a stranger to the corporation as the 30(b)(6) wit-ness. 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. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." All Rights Reserved. Though DR 7-104 (A) (1) applies only to communications with . 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. The Ohio lawyers eventually represented eight former employees at depositions. 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. 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. In fact, deposition testimony can also be used in court at trial. 2005-2023 K&L Gates LLP. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. Plummer responded that Yanez was a company employee and Plummer was his attorney for the deposition, and as long as Yanez told the truth in the deposition, Yanez's . Assessing the likelihood of disclosure would depend upon weighing such factors as: the positions of the former employees in relation to the issues in the suit;, whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise;, the nature of the inquiry by opposing counsel; and, how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. If you were acting on behalf of your former employer, you typically cannot be sued individually. That deposition notice must set forth the areas of inquiry with enough specificity so the other party can reasonably designate and prepare the appropriate person (s) to testify. Although the district courtIndeed, if a witness who is approached for an allowed the law firm to represent the formerinterview tells the investigating agent that he is employees along with Occidental, it enjoined therepresented by an attorney (even one who happens to firm from mailing the proposed notices to the formeralso be X's attorney), the CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. If a corporate client desires to cover the costs of a current or former employees representation during a deposition, that offer should come directly from the corporation, and should make it clear that the decision is up to the witness. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. 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