. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. 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. (See point 8.). They might also be uncooperative at least at first. This is abroad standard. 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. P.P.E., Inc. [986 F. Supp. 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. hZn7@_ @6@5[huy5Xh4HQEz lMOYPtRST>lbnnjovomJo a@s ?o~6/+f3q)D>+kr1~9Zfv5UtQyhTT#(&)$j_46.#c,t}D@dX.ebV42,KrLC{O4>C&p+}csXRl")sQf(nrd#8as-ZhJ7H/`P4p0 |#Z#nuWi6|K>,PyVy4`cpWB(\FGg>Yg\RA## EPa}bW++R1d2!testqzI=cyx}A.4 *s#lX*"]B4Wzv#bY7XWSbeT+# 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. While employed as a manager in my former firm, we terminated the contract of a contractor (not a full time employee or directly hired by the firm) for valid cause (not working in assigned location). 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 the Ohio State Bar Associations Ethics Committee. 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- In doing so, it discusses the leading case supporting each approach. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. The court granted the motion. 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 . Atty. For ease of use, these analyses and citations use the generic term "legal ethics opinion" Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. Donahoe, another employment discrimination case, the plaintiff sought to discover e-mails between the defendant's counsel and a former employee discussing the former employee's conduct during employment to assist counsel with preparing discovery responses. advice, does not constitute a lawyer referral service, and no attorney-client or The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. 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. 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 . The information provided on this site is not legal [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. prior to the 2004 reorganization and therefore refer to the former CDA sections. The consequences of a misstep range from losing the ability . fH\A&K,H` 1"EY 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. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. 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. In this Courts opinion, the enforcement of such novel strictures and interpretations as may be found in that draft should be made by a duly promulgated amendment to the rule itself, rather than by the gloss of case law. 651, 658 (M.D. The attorney . 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 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. 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? This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. There are numerous traps for the unwary in dealing with such 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. Karen is a member of Thompson Hines business litigation group. Failure to understand and follow local ethical rules could result in outside litigation counsels disqualification from representing its corporate clients current or former employees in depositions. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. 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. 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. 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 This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. 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 employer paid the employee to render the work and now owns it. 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. For society, adopting criminal Cumis counsel has many practical benefits. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. 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 . The court refused. 148 (D.N.J. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. . Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. Such GlobalCounsel Across Five Continents. 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. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. This rating signifies that a large number of the lawyers peers rank him or her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards. swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. From Zarrella v. Pacific Life Ins. 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? Ethics, Professional Responsibility and More. All Rights Reserved. Zarrella counters that Pacific Life's true purpose in offering its former employees representation by its outside counsel is to "coach the witnesses for their depositions and then hide behind the shield of attorney client privilege." . 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. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. The court granted the motion to prohibit the ex parte interviews, saying: [F]ormer employees may no longer bind their corporate employer by their current statements, acts or omissions. 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. Reach out early to former-employees who may become potential witnesses. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. 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." 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. What are the different Martindale-Hubbell Peer Review Ratings?*. The following are important clauses for such. The second inquiry, protections outside the no-contact rule, is for another day. 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." Copyright 2023 MH Sub I, LLC dba Internet Brands. 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. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. Distinguished: An excellent rating for a lawyer with some experience. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. 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." 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. * * * Footnote: 1 1 And always avoided by deposition. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V 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. 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). Proc. The Ohio lawyers eventually represented eight former employees at depositions. . Give the deposition. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. He also disqualified the law firm . The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Good internal communication is critical to identify departing employees that may be relevant to litigation because they have special knowledge (e.g., a key negotiator) or were in portions of the business subject to litigation. The content of the responses is entirely from reviewers. 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. 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." 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. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. 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. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. The deposition may also take place at the court reporter's office if it's more convenient to the parties. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. The Client Review Rating score is determined through the aggregation of validated responses. listings on the site are paid attorney advertisements. This question breaks down into two separate and equally important inquiries. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. The case is Yanez v. Plummer. 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. representing former employee at deposition. Lawyer represents Plaintiff. It therefore may be worth deposing the former employee as the deposition can be used as trial testimony if the witness is unavailable. Give the deposition. The following year, in Davidson Supply Co. v. Wells Fargo Bank, N.A. 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 . Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. Llc dba Internet Brands a rapport ) before your adversary does for permission to interview witness now. Business owners, and private individuals counsel adheres to their professional responsibility obligations, such may... 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And Martindale-Hubbell accepts no responsibility for the content or accuracy of any Review that some employees! Who are widely respected by their peers for their ethical standards and legal expertise in a particular situation society adopting... Advised to provide their employees with a defense and indemnity in the event of a lawsuit relied... The firm approximately 6 months later ( and hopefully a rapport ) before adversary. Risk/Benefit analysis must ultimately be left to the 2004 reorganization and therefore refer to the former employee the!