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. Though DR 7-104 (A) (1) applies only to communications with . * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. In fact, deposition testimony can also be used in court at trial. For more than a century, Thompson Hine has been committed to excellence on behalf of our clients, our people and the communities in which we live and work. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45." Karakis v. Foreva Jens Inc., Preparing CRCP 30(b)(6) Deposition . Any ambiguity in the courts formula could be addressed after the interviews took place. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. 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. 148 (D.N.J. But the court denied the motion, declining to read the lawyers admission status so narrowly. at 7. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. . endstream endobj 70 0 obj <>stream ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. For society, adopting criminal Cumis counsel has many practical benefits. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. The employer paid the employee to render the work and now owns it. Providing for two lawyers (for both the employee and employer) doubles the cost. prior to the 2004 reorganization and therefore refer to the former CDA sections. . Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. #."bs a She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Atty. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. At that point, the nature and results of the inquiry can be examined and an appropriate remedy fashioned for any breach of ethics and/or other relevant rules governing discovery or admission of evidence. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V Employees leaving a company are also likely to throw out documents or purge email files. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. Mai 2022 . Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys former employees. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. 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. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Taking A's deposition and cross-examining A at the trial raises the very same issues. There are numerous traps for the unwary in dealing with such witnesses. Verffentlicht am 23. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. It therefore may be worth deposing the former employee as the deposition can be used as trial testimony if the witness is unavailable. Every good trial lawyer knows that the right witness can make or break your case. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Va. 2008). employee from being "cute" and finding an "innocent" way around the direction. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. Obtain agreements to cooperate for key employees. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. You are more than likely not at risk since you have not been sued. This site uses cookies to store information on your computer. A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. Id. This is abroad standard. 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 . 5. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. 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? P.P.E., Inc. [986 F. Supp. Give the deposition. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. Our office locations can be viewedhere. Richard F. Rice (Unclaimed Profile). 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. Lawyers who have received peer reviews after 2009 will display more detailed information, including practice areas, summary ratings, detailed numeric ratings and written feedback (if available). The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. 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. 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. [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).] [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. In examining the scope of the no-contact rule, this article will look at various jurisdictions because, under New Yorks DR 1-105(B), the choice of law rule added to the New York Code of Professional Responsibility in mid-1999, your conduct during pending litigation is ordinarily governed by the ethics rule of the state where the tribunal sits. Such hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ 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. Still other courts have based their decisions on the positions held by the former employees, holding that there should be no ex parte communication with former employees who held managerial responsibilities with a represented corporate party. 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 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. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. Also ask the former employee to alert you if they are contacted by your adversary. 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. This question breaks down into two separate and equally important inquiries. Id. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. 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. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence. [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. 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. Distinguished: An excellent rating for a lawyer with some experience. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. Weve pointed out before (here and here) that being admitted pro hac vice requires you to be alert for potential issues that might have an impact on your ability to practice away from home. LEXIS 108229 (S.D. Avoiding problems starts before employees become "former." 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. Reply at 3 (DE 144). From Zarrella v. Pacific Life Ins. 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." 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. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. Also, I am not willing to spend money to hire a lawyer to represent me solely. 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. 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. 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. 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. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. 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.. 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. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? In doing so, it discusses the leading case supporting each approach. Introduction. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. Under Federal Rule 30(b)(6) and comparable state rules, preparing for a corporate deposition may seem like a simple, straightforward task and business as usual for defense counsel. 1988).] AV Preeminent: The highest peer rating standard. What this means is that notes, correspondence, think pieces, The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. 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. If you do get sued, then the former firm's counsel will probably represent you. One of the first questions a former employee will ask is whether they should retain a lawyer. 66 0 obj <>stream representing former employee at deposition. Between Dec. 12, 1996, and May 4, 1997, Davis is accused of anally penetrating a teen in King Cottage at YDC. Bar association ethics committees have taken the same approach. 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. Martindale-Hubbell validates that a reviewer is a person with a valid email address. 6. Moreover, former employees are often "former" for a reason. Prior to that time, there is no assurance that information you send us will be maintained as confidential. . 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