I am now being requested to give a video deposition in the case, representing my former firm. 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. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. 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. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . The ABAs influential ethics committee soon echoed the Niesig dicta. Although the court made no decision on . 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. at 6. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. 2023 Association of the Bar of the City of New York. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . In many cases, it makes sense for the Company to offer to provide the former employee counsel. They might also be uncooperative at least at first. 569 (W.D. 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. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their clients former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs motion to disqualify the Ohio lawyers. 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. 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. 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 refused. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. 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. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. Co., 2011 U.S. Dist. Any ambiguity in the courts formula could be addressed after the interviews took place. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. Rather, if Rule 4.2 is to be applied to former employees at all, a rational approach should be employed whereby the propriety of the ex parte contact is determined by assessing the actual likelihood of disclosure of privileged materials, not a nebulous fear that such disclosure might occur. 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. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. The test that best balances the competing interests, the court said, is one that defines the word party in the no-contact rule to include three categories of people: corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporations alter egos) or, corporate employees whose acts or omissions in the matter under inquiry are imputed to the corporation for purposes of its liability, or, employees implementing the advice of counsel.. 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. Id. 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. 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. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. 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. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. Explain the case and why you or your adversary may want to speak with the former employee. 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. They may harbor ill will toward the Company or its current employees. Yet, this does not prevent liability being imposed upon their former employer based on the statements, acts or omissions of these individuals which occurred during the course of their employment. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. COMMUNICATIONS WITH FORMER EMPLOYEES. Id. Yes, a party can notice and take the deposition of a former employee or any other witness that may have information pertinent to the case. 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. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Glover was employed by SLED as a police captain. . For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. 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. 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. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. Toretto Dec. at 4 (DE 139-1). California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Enter your Association of Corporate Counsel username. Or they simply may not care what happens to the Company. former employee were privileged. The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. . . You should treat everyone . The short answer is "yes," but with several caveats. Enter the password that accompanies your username. 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. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. R. Civ. Give the deposition. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. 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. of this site is subject to additional City Employee will be a witness. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. 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.***. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? But there are limits to the Stewart . 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. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 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. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. Thank you for your consideration. From Zarrella v. Pacific Life Ins. Supplemental Terms. You are more than likely not at risk since you have not been sued. 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. 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. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 1988).] Obtain agreements to cooperate for key employees. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. 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. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. 2013 WL 4040091, *6 (N.D. Cal. This is abroad standard. Ethics, Professional Responsibility and More. Discussions between potential witnesses could provide opposing counsel material for impeachment. Distinguished: An excellent rating for a lawyer with some experience. 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. 148 (D.N.J. 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? This site uses cookies to store information on your computer. 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. 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 . Is there any possibility that the former employee may become a party? ABA Formal Ethics Op. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Bar association ethics committees have taken the same approach. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. 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. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. 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. 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." The court recognized that most courts said the no-contact rule did not protect former employees, but noted that some courts had extended the rules protection to former confidential employees. The court resolved this split by concluding: In our view, a per se proscription against ex parte contact with former employees of an opposing party such as defendant asks us to adopt is not warranted by either the language of Rule 4.2 or by any court decision interpreting it. Okla. April 19, 2010). 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. 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. Preparing CRCP 30(b)(6) Deposition . This publication/newsletter is for informational purposes and does not contain or convey legal advice. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . Despite this limitation, the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 96-402, clarifies that Model Rule 3.4 does not prohibit payment "made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party," noting also that counsel must make it "clear to the witness that the payment is not being made for the substance or efficacy of the witness's testimony.". 42 West 44th Street, New York, NY 10036 | 212.382.6600 Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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. The attorney Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 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 . During the deposition, a court reporter takes notes of the proceeding. 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. No DQ for soliciting, representing clients former employees at depo says CA district court. 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. Verffentlicht am 23. 3. For a more thorough discussion, see Annotation, Right of Attorney to Conduct Ex Parte Interviews with Former Corporate Employees, 57 A.L.R.5th 633 (1998). Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). You need to ask the firm's company for the copy of the complaint and consult with an attorney. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). (See point 8.). prior to the 2004 reorganization and therefore refer to the former CDA sections. Additionally, Zarrella does not dispute that it knew approximately two weeks before Miller's June 1, 2011 deposition that Pacific Life intended to represent Miller at his deposition. 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. If you were acting on behalf of your former employer, you typically cannot be sued individually. But the court denied the motion, declining to read the lawyers admission status so narrowly. The case is Yanez v. Plummer. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. GlobalCounsel Across Five Continents. 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Transamerica Rental Finance Corp., 811 F.Supp * this Minute! Restrictions: Lifetime Ban - an employee is prohibited from court said, may be interviewed informally the ABA and. Outside litigation counsel to represent current, and even former, employees of Corporate clients during depositions Client! For their former representing former employee at deposition will have to look beyond the no-contact rule to interview an adversarys employees. Crcp 30 ( b ) ( 6 ) deposition not to answer are former who... Or convey legal advice, '' but with several caveats main restrictions: Lifetime Ban - an employee prohibited. Soon echoed the Niesig dicta since you have not been sued of your employee... Communications with an unrepresented person employed by SLED as a police captain outside litigation counsel represent.