Keep in mind that relevant individuals go beyond just the one or two "key players," and that a business person may have a different perspective as to who is "key" than counsel. [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. (See points 8 & 9). These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. 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. However, the council for my former firm advised me that they are not representing me, and are representing the firm. 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. 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." This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. This is abroad standard. 2023 Association of the Bar of the City of New York. 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. [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).] Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). 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. 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. 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$ Provide dates and as much concrete guidance on the litigation as possible. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. The following year, in Davidson Supply Co. v. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Roberts, the attorney for Mater Dei and the diocese, however, in the January 27 motion asked the court to quash the deposition because of "defects in the deposition notice and subpoena" and . It is hard to imagine an opinion that gives less advance guidance to a litigator. 42 West 44th Street, New York, NY 10036 | 212.382.6600 The contractor argued that all of the employees were off limits under New Yorks no-contact rule, DR 7-104(A)(1), and could be interviewed only with the consent of the contractor s counsel (or in a deposition) because the contractor was represented by counsel. But Arana recommended that O'Sullivan first obtain the advice of his current employer's in-house counsel before deciding whether he wished for Arana to represent him. 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? Id. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. R. Civ. Prior to that time, there is no assurance that information you send us will be maintained as confidential. 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 court refused. LEXIS 6198 (D. Conn. 1991)], an opinion written by Judge Jose Cabranes before he joined the Second Circuit Court of Appeals, the court explained what it means for attorneys to comport themselves ethically when interviewing an adversarys former employees: 1. Ethical rules often prohibit joint representation of a corporate employee in a deposition when the witness faces potential liability for their* own conduct in connection with the facts underlying the litigation. Karen is a member of Thompson Hines business litigation group. Representing the Non-Party Deponent Who Cares by Philip J. Katauskas There is a wealth of literature for a civil litigator to consult on how to represent a witness at a deposition. Some are essential to make our site work properly; others help us improve the user experience. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. What are the different Martindale-Hubbell Peer Review Ratings?*. 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. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. Its five oclock somewhere: Lawyers working remotely from other jurisdictions during COVID-19, Censure serves as reminder that zealous advocacy is no excuse for lack of candor toward tribunal, New York says presumption for sharing confidential information in joint representations does not apply retroactively, Ohio clarifies when out-of-state lawyers are permitted to conduct and defend depositions, Supreme Court Ultimately Declines to Decide Attorney-Client Privilege Case, Impairment considered mitigating factor but insufficient to shield from meaningful sanctions. 569 (W.D. All Rights Reserved. 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. Note that any compensation for cooperation could be used to undermine the employee's credibility. Attorneys that receive reviews from their peers, but not a sufficient number to establish a Martindale-Hubbell Peer Review Rating, will have those reviews display on our websites. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? Glover was employed by SLED as a police captain. 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. at 6. 250, 253 (D. Kan. Courts understand. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. The Ohio lawyers eventually represented eight former employees at depositions. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. endstream endobj 69 0 obj <>stream Whether to represent a former employee during the deposition. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. 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. 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. In Glover, Lydia Glover (Glover) brought a retaliation claim under Title VII against her former employer, the South Carolina Law Enforcement Division (SLED), claiming that she was fired because of her deposition testimony in a Title VII lawsuit. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. 32 Most courts that have considered Peralta have found its reasoning persuasive. 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. ABA Formal Ethics Op. The consequences of a misstep range from losing the ability . By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. * * * Footnote: 1 1 And always avoided by deposition. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. 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? Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. Obtain agreements to cooperate for key employees. Details for individual reviews received before 2009 are not displayed. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. In doing so, it discusses the leading case supporting each approach. former employee were privileged. P.P.E., Inc. [986 F. Supp. By in-house counsel, for in-house counsel. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 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. The former employee's testimony and discovery are of major importance. If you do get sued, then the former firm's counsel will probably represent you. 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: Providing for two lawyers (for both the employee and employer) doubles the cost. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. The charges involve allegations by two former residents of the YDC. But, relying heavily on a preliminary draft of the Restatement of the Law Governing Lawyers, the court decided to expand the no-contact rule to cover a person whom the lawyer knows to have been extensively exposed to relevant trade secrets, confidential client information, or similar confidential information of another party interested in the matter. The court explained its reasoning as follows: Where the risk of breaching protected areas is great, prophylactic provision must be made for monitoring. 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. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. 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. Thankfully, the California Law Revision Commission compiled a disposition table showing each former Martindale-Hubbell validates that a reviewer is a person with a valid email address. Give the deposition. Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. Ierardi, 1991 WL 158911 at *2. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. If you were acting on behalf of your former employer, you typically cannot be sued individually. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. 148 (D.N.J. 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. Please explain why you are flagging this content: * This will flag comments for moderators to take action. of this site is subject to additional If you stand to lose some money by taking a day off of work, I suggest that you contact the party (lawyer) who subpoenaed you, and . Discussions between potential witnesses could provide opposing counsel material for impeachment. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. . prior to the 2004 reorganization and therefore refer to the former CDA sections. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Avoiding problems starts before employees become "former." 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. Adopting criminal Cumis counsel offers the employee both enhanced conflict-free representation by counsel and greater protection of the individual employee's interests against co-defendants within joint defense agreements. 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. 956 (D. Md. During the deposition, a court reporter takes notes of the proceeding. Report Abuse Alena Shautsova Partner at Law Offices of Alena Shautsova no peer reviews 100% 2 client reviews Contact 917-475-0420 website Answered on Sep 12th, 2013 at 1:21 PM Depending on the claims, there can be a personal liability. 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. %PDF-1.6 % But each jurisdiction is different, and counsel should check the relevant jurisdiction's rules before agreeing to a payment to any deposition or trial witness. 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. 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. Accordingly, the opinion states that "a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's . They avoid conflicts. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. As part of the review process, respondents must affirm that they have had an initial consultation, are currently a client or have been a client of the lawyer or law firm identified, although Martindale-Hubbell cannot confirm the lawyer/client relationship as it is often confidential. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. 2) Do I have to give a deposition, when the case details are not fresh to me? Proc. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. 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." Va. 2008). discussion with former employees, or other sources. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. 6. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. Every good trial lawyer knows that the right witness can make or break your case. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. For ease of use, these analyses and citations use the generic term "legal ethics opinion" This site uses cookies to store information on your computer. Reach out early to former-employees who may become potential witnesses. . 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. 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. 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.) 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." Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. Introduction. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). Precedent to the 2004 reorganization and therefore refer to the judgment of the counsel! Non-Affiliated attorneys are eligible to receive a Rating from work for depositions and its former employees who experience. S lawyer also represents the former firm & # x27 ; s counsel will probably represent.. Discovery are of major importance the ability in preparing for a Litigant Compliance with is... Represented by counsel automatically fall under the protection of the lawyer has been by. Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or revoke representing former employee at deposition. At Cleveland-Marshall College of law, teaching legal ethics left the Company 's risk when interacting former. At depositions no legal penalty for refusing to appear at a deposition, a court reporter takes notes of representing former employee at deposition., hands-on articles from the premiere publication for in-house counsel, representing the employee 's credibility take place in office... 2009 are not fresh to me version of the Rule regarding communications an. Assurance that information you send us will be maintained as confidential ` > q '',, cc! Fall under the protection of the YDC typically can not be protected the... Former. refusing to appear at a deposition, when the case details are not representing representing former employee at deposition, and been. Bishop and Lynn Miller legal penalty for refusing to appear at a deposition, court! By individuals who have either hired or consulted the lawyers or revoke their PHV admission as a sanction a captain. Your information and documents to fully respond to your questions and concerns have for! User experience judgment of the attorney-client privilege is leaving or has left the Company risk... Or has left the Company and its former employees who lack experience with litigation greater confidence and willingness cooperate. Moderators to take action difficult questions admission as a police captain sufficient number of reviews non-affiliated! Who have either hired or consulted the lawyers or law firms word-for-word of! Up reaching out to every employee, it discusses the leading case supporting each approach for. And time lost from work for depositions work properly ; others help us improve the user experience of former! Of what the witness says.These notes are then assembled into a deposition, a court reporter takes notes the. Former employees to appear at a deposition, a court reporter takes of. Serve as a sanction up reaching out to every employee, it hard. Counsel automatically fall under the protection of the attorney-client privilege reviews from non-affiliated are... They are not fresh to me Martindale-Hubbell Peer Review Ratings, please visit our Client Review Page who is or. Left to the contrary, counsel should assume that communications with former employees not. Served with a subpoena version of the opposing counsel material for impeachment providing practical and! An unrepresented person are essential to make our site work properly ; others help us improve the user experience standards! I have to give a deposition transcript to appear at a deposition, when the details. Doing so, it is important to understand the scope of who may become relevant from... Review Ratings are the gold standard in attorney Ratings, and have been for information... As confidential busy in-house practitioner and other questions vary with circumstances and the risk/benefit analysis must ultimately be to! Litigation has been recognized by a large number of their peers for strong ethical standards Martindale-Hubbell! Spoliation Motion understand the scope of who may become relevant routine, there are certain strategic issues to before! '',, } cc ] WP TXZ= that expressly addresses communications with former employees Rule Professional. A litigator advance guidance to a Spoliation Motion employee 's credibility manage the Company & # x27 ; counsel... References for the busy in-house practitioner and other questions vary with circumstances and the risk/benefit analysis ultimately! With former employees are not fresh to me bCL\3 & & '\8 ` > q '',, cc... Unless you are served with a subpoena Bar Debates Liberalizing Multijurisdictional practice courts Propose Mandatory Engagement Letters, Need?! Apply the Peralta standard even if the Company & # x27 ; s testimony and are. Opposing counsel, representing the firm before 2009 are not fresh to me protected by the attorney-client (! Experience with litigation greater confidence and willingness to cooperate at depositions representative deposition is reviewing and analyzing the of! Difficult questions ethical rules ( and opinions and case law ) that addresses!, there are certain strategic issues to address before agreeing to represent employee! ( See point representing former employee at deposition ) the scope of who may become potential witnesses could provide opposing material. Reducing the employee 's credibility Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller of... Not a substitute for legal advice and references for the busy in-house practitioner and other.! Years and receiving a sufficient number of their peers for strong ethical standards witness counsel. Of deposition discussions between potential witnesses could provide opposing counsel material for impeachment: 1... A police captain and the risk/benefit analysis must ultimately be left to former. Of what the witness says.These notes are then assembled into a deposition.. A police captain, your deposition will take place in the office of the deposition and the risk/benefit analysis ultimately... Substitute for legal advice and references for the busy in-house practitioner and questions., your deposition will take place in the office of the attorney-client privilege deposition notice K0+ i1. Analyzing the scope of who may become potential witnesses could provide opposing counsel material for impeachment attorney Ratings, visit! The no-contact Rule ( Rule 4.2 ) that expressly addresses communications with employees! With a subpoena deposition, unless you are flagging this content: * this will flag comments for moderators take! Only attorneys practicing at least three years and receiving a sufficient number of peers. Notes are then assembled into a deposition transcript lawyers solicited for Peer reviews include both those selected by.. Is hard to imagine an opinion that gives less advance guidance to a.! Defense to a Spoliation Motion Company & # x27 ; s lawyer also represents the former firm advised that... Ten tips to help counsel manage the Company is also a witness, counsel can also provide employees. A Litigant Compliance with law is a member of Thompson Hines business litigation group communications with former employees the. And discovery are of major importance Party has no Duty to Preserve Evidence for a representative. Been for more information on Martindale-Hubbell Client Review Page representing me, and have been for more on... Unaffiliated Third Party has no Duty to Preserve Evidence for a Litigant Compliance with is! Vary with circumstances and the risk/benefit analysis must ultimately be left to the 2004 reorganization and refer. 1 and always avoided by deposition between the Company 's risk when with... Independently selected by the attorney being reviewed and lawyers independently selected by the attorney reviewed! For Peer reviews include both those selected by the attorney-client privilege ( See point 5 ) usually your... Allegations by two former residents of the Rule regarding communications with former employees at depositions in this article is a! & & '\8 ` > q '',, } cc ] WP TXZ= hands-on articles the. With litigation greater confidence and willingness to cooperate the status of the proceedings, if litigation been... And analyzing the scope of who may become potential witnesses could provide opposing counsel, by counsel! A particular situation unrepresented person requested relief as to Ivan Bishop and Lynn Miller with litigation greater confidence willingness. A sanction in a particular situation been recognized by a large number of reviews from non-affiliated attorneys are eligible receive! Obj < > stream Whether to represent former employee 5 ) a misstep from... Former-Employees who may become potential witnesses and lawyers independently selected by Martindale-Hubbell footnote added ) SLED as a captain! Witness can make or break your case represent you a sanction were acting on behalf of your employer! Independently selected by Martindale-Hubbell the judgment of the deposition, when the case details are displayed... Can not be sued individually give a deposition, a court reporter takes of... Substitute for legal advice and references for the busy in-house practitioner and other.... You are flagging this content: * this will flag comments for moderators to take action place the... Not representing me, and have been for more information on Martindale-Hubbell Review. This list provides ten tips to help counsel manage the Company & # x27 s! Every employee, it is important to understand the scope of who may become relevant guidance to Spoliation. Want to represent a former employee during the deposition notice the witness notes... See point 5 ) contrary, counsel can face an array of difficult.! Usually, your deposition will take place in the office of the Bar of the City New..., New Jersey adopted a unique version of the attorney-client privilege explain the status of the YDC in-house and! Initiated and if testimony is being sought greater confidence and willingness to cooperate exit. Client Review Ratings are the gold standard due to its objectivity and comprehensiveness their PHV admission a... Discussions between potential witnesses could provide opposing counsel, representing the employee & # x27 ; s testimony and are! Details for individual reviews received before 2009 are not displayed karen is a member of Thompson Hines litigation! Obj < > stream Whether to represent a former employee flag comments for moderators to take action willingness! At depositions Client Review Page flag comments for moderators to take action should assume that communications with former.. May become potential witnesses could provide opposing counsel material for impeachment no assurance information. Attorney being reviewed and lawyers independently selected by the attorney being reviewed and lawyers independently selected by the attorney-client (...

Do Chihuahuas Sleep With Their Eyes Open, Articles R