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. 569 (W.D. For more information, read our cookies policy andour privacy policy. 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. The consequences of a misstep range from losing the ability . Karen is a member of Thompson Hines business litigation group. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. 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. In Niesig, therefore, the New York Court of Appeals added, the cautionary note that, while we have not been called upon to consider questions relating to the actual conduct of such interviews, it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically. In Dubois v. Gradco Systems [1991 U.S. Dist. at 6. Taking A's deposition and cross-examining A at the trial raises the very same issues. The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. 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. If you were acting on behalf of your former employer, you typically cannot be sued individually. .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 . 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. Wells Fargo Bank, N.A. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. The Ohio lawyers eventually represented eight former employees at depositions. ***. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. Bar association ethics committees have taken the same approach. 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. 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 . endstream endobj 69 0 obj <>stream Alternatively, you may be served with a subpoena to testify at a deposition, in which case you cannot ignore the subpoena without subjecting yourself to possible contempt of court charges. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. . Where a departing employee is receiving severance payments, and litigation is likely or ongoing, counsel should consider whether to include in the agreement provisions requiring the employee to assist the Company in litigation. 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. 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. Verffentlicht am 23. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. 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. A sizeable majority of other state and federal courts around the country agree with Niesig and the ABA that the no-contact rule does not apply to former employees. 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? How can the lawyer prove compliance with RPC 4.3? This publication/newsletter is for informational purposes and does not contain or convey legal advice. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Supplemental Terms. endstream endobj 68 0 obj <>stream Lawyers from our extensive network are ready to answer your question. Ierardi, 1991 WL 158911 at *2. 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. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. 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? Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. 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.. 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. 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. By in-house counsel, for in-house counsel. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. There are numerous traps for the unwary in dealing with such witnesses. People who submit reviews are either individuals who consulted with the lawyer/law firm or who hired the lawyer/law firm and want to share their experience of that lawyer or law firm with other potential clients. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. 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. 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. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. The case is Yanez v. Plummer. Ethics, Professional Responsibility and More. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. 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). Obtain agreements to cooperate for key employees. Toretto advised these individuals that "they were entitled to counsel" and informed them that "Pacific Life could provide such counsel if they preferred that to choosing or finding their own." Proc. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 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. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. 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. 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? 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. 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. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. The charges involve allegations by two former residents of the YDC. . All Rights Reserved. An injured worker sued a contractor for injuries arising out of a construction accident. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? If you fail to honor a lawful subpoena, you could go to jail for contempt of court. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. 1115, 1122 (D. Md. 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." 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. 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. 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***. 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. 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. 1996).]. For ease of use, these analyses and citations use the generic term "legal ethics opinion" The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 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. Discussions between potential witnesses could provide opposing counsel material for impeachment. 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. Id. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Lawyer represents Plaintiff. 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 . . 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