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. Ethics, Professional Responsibility and More. But there are limits to the Stewart . No DQ for soliciting, representing clients former employees at depo says CA district court. . 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. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. 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). 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. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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. 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. 1116, 1118 (D. Mont. 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 plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. 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. LEXIS 108229 (S.D. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. . Toretto Dec. at 4 (DE 139-1). No one wants to be drawn into litigation. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. Verffentlicht am 23. Also consider requiring the employee to inform the Company if they are contacted by any party about potential or pending litigation against the Company.Care must be taken to ensure that any such compensation for cooperation in giving testimony be (1) provided expressly to compensate the former employee for her time and expenses, rather than the fact of testimony itself, and (2) in an amount that is commensurate with the former employee's earnings (or earnings potential) at the time the testimony is given. 569 (W.D. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. 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. endstream endobj 70 0 obj <>stream Reply at 3 (DE 144). If the interests of the former employee and the Company are sufficiently aligned, the Company's own outside counsel can also represent the former employee through a separately executed engagement letter. 1988).] 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. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? Like Model Rule 7.3, Californias version bars telephone contact to solicit professional employment when a significant motive for doing so is the lawyers pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.. U.S. Complex Commercial Litigation and Disputes Alert. 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. 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+# From Zarrella v. Pacific Life Ins. Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak on the designated topics. 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. You are more than likely not at risk since you have not been sued. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. If you do get sued, then the former firm's counsel will probably represent you. They avoid conflicts. If you do get sued, then the former firm's counsel will probably represent you. Such 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? AV Preeminent: The highest peer rating standard. 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. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. 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 fact, deposition testimony can also be used in court at trial. . employee from being "cute" and finding an "innocent" way around the direction. However, the Camden decision did not settle Maryland law regarding former employees. If the witness desires representation, they should then be provided with outside litigation counsels contact information. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. 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. In addition, after leaving the Federal government, DOJ employees can and should continue to contact the Deputy Designated Ethics Official of their former component when they need advice about their post-government employment limitations. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? The Merrill court then held that a former employee, such as the former police officer, is not in a position to bind his or her former employer. Avoiding problems starts before employees become "former." endstream endobj 67 0 obj <>stream How long ago did employment cease? It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. %PDF-1.6 % 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. The attorney 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." COMMUNICATIONS WITH FORMER EMPLOYEES. Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. endstream endobj 69 0 obj <>stream 2013 WL 4040091, *6 (N.D. Cal. Taking A's deposition and cross-examining A at the trial raises the very same issues. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. The following year, in Davidson Supply Co. v. Co., 2011 U.S. Dist. Id. 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. 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. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. 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. at 6. The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. 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." 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. 956 (D. Md. 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. . Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. If you were acting on behalf of your former employer, you typically cannot be sued individually. Glover was employed by SLED as a police captain. 2023 Association of the Bar of the City of New York. They may harbor ill will toward the Company or its current employees. 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. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. (See point 8.). You should treat everyone . 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). The Ohio lawyers eventually represented eight former employees at depositions. During the deposition, a court reporter takes notes of the proceeding. Ierardi, 1991 WL 158911 at *2. Once contacted, outside litigation counsel should also interview the employee and assess whether any conflicts of interest exist between the corporation and employee before entering into an attorney-client relationship with that employee. 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. 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. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. The consequences of a misstep range from losing the ability . CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. ENxrPr! 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. Counsel may need to be involved in this process. These resources are not intended as a definitive statement on the subject addressed. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. 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 [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. representing former employee at 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. . The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. 303 (E.D. The short answer is "yes," but with several caveats. 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