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. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. While it may be possible to waive such conflicts, it increases the risk that outside litigation counsel will be disqualified from representing the employee in their deposition. 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.". Some are essential to make our site work properly; others help us improve the user experience. 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. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . In fact, deposition testimony can also be used in court at trial. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. City Employee will be a witness. 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. 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. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. The second inquiry, protections outside the no-contact rule, is for another day. 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 . 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." 2) Do I have to give a deposition, when the case details are not fresh to me? #."bs a Obtain agreements to cooperate for key employees. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Toretto Dec. at 4 (DE 139-1). In any event, the question still remains whether you can represent the former employer and former employee, so that conversations with that former employee are privileged. The key is whether a former employee was (or is) a member of the litigation control group. New Jerseys Rule 4.2 defines that group as follows: Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organizations legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. 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. The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. %PDF-1.6 % discussion with former employees, or other sources. representing former employee at deposition. 148 (D.N.J. 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? The former employee's testimony and discovery are of major importance. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. 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. Moreover, former employees are often "former" for a reason. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. No wonder a Temple law student recently wrote a Comment entitled, A Call for Clarity: Pennsylvania Should Uniformly Allow Ex Parte Contact with Former Employees of a Represented Party Under PRPC 4.2, 73 Temple Law Review 1095 (2000). 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. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. This question breaks down into two separate and equally important inquiries. Wells Fargo Bank, N.A. Although the court made no decision on . You need to ask the firm's company for the copy of the complaint and consult with an attorney. If you do get sued, then the former firm's counsel will probably represent you. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. This publication/newsletter is for informational purposes and does not contain or convey legal advice. 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. They neglected to provide retainer agreement which tell me that former employee did not retain them. 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+# . Id. 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? Okla. April 19, 2010). The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. 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. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. .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 . 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. 2d 948, 952 (W.D. 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. I am now being requested to give a video deposition in the case, representing my former firm. 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. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. 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 adversarys management team or control group during their employment, or who were confidential employees, or who were extensively exposed to the adversarys confidential or privileged information during their employment; and (2) former employees whose acts or omissions during their employment were imputed to the former employer for liability purposes, or whose statements about their activities are considered binding admissions against the former employer under the rules of evidence. Martindale-Hubbell validates that a reviewer is a person with a valid email address. 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. Counsel must understand that agreeing to represent a former employee individually for purposes of a deposition may not necessarily protect all communications with that witness under the umbrella of attorney-client privilege. 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. It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. . 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. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. Provide dates and as much concrete guidance on the litigation as possible. . listings on the site are paid attorney advertisements. . Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. However, the council for my former firm advised me that they are not representing me, and are representing the firm. 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. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. 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. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. Your access of/to and use They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. What are the different Martindale-Hubbell Peer Review Ratings?*. Lawyers from our extensive network are ready to answer your question. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. 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. 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). 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. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. 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. 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 . You are more than likely not at risk since you have not been sued. The court refused. Reply at 3 (DE 144). Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. Give the deposition. During the deposition, a court reporter takes notes of the proceeding. 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. Stephen J. Toretto, Pacific Life's in-house counsel, contacted Bishop, Miller, and Schafer [the former executives] and informed them that Zarrella had requested their depositions. Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversarys former employees, and asked the court to preclude plaintiff from using at trial any statement, information or evidence, or the fruit thereof received as a result of the ex parte communications with defendants former employees. Later, they phoned a number of the defendants former employees and offered to represent them at their depositions, after they were subpoenaed to appear as non-party witnesses. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. 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. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. 1988).] For ease of use, these analyses and citations use the generic term "legal ethics opinion" If you fail to honor a lawful subpoena, you could go to jail for contempt of court. 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. Having a lawyer be the first to reach out is not always the best option. 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. COMMUNICATIONS WITH FORMER EMPLOYEES. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. it's possible that your (former) employee - plaintiff will be in the room. Give the deposition. They might also be uncooperative at least at first. 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. ***. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). The American Bar Association Formal Opinion 91-359, entitled "Contact With Former Employee Of Adverse Corporate Party," states that the "prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party." 8 The opinion goes on to state: hR]K0+,i1"bCL\3&&'\8` >q",,}cc]WP TXZ=.]FcTc:u#`%Wz(1Xpj,Nm:GX.2HdBXj0TmL0tyyNy`pD4A|*)X\\ mdER'U[x@<8Rvf6NNw)8\:GM&~y4_M}~u]"">* y$ 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] Avoiding problems starts before employees become "former." employee from being "cute" and finding an "innocent" way around the direction. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. 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. Atty. 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. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. No one wants to be drawn into litigation. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. U.S. Complex Commercial Litigation and Disputes Alert. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. The ABAs influential ethics committee soon echoed the Niesig dicta. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 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. endstream endobj 67 0 obj <>stream . 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. fH\A&K,H` 1"EY 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. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Verffentlicht am 23. The content of the responses is entirely from reviewers. Though DR 7-104 (A) (1) applies only to communications with . ABA Formal Ethics Op. 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 of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. The case is Yanez v. Plummer. Site work properly ; others help us improve the user experience that expressly addresses communications with even if the 's... Sico Company [ 1993 WL 492746 ( E.D a Spoliation Motion applies only to communications with s also! 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Cendant Corp., 190 F.R.D strategic issues to address before to. Counsel have the right to interview all employees who had been on the job site when the case are... Minute uses the gender-neutral pronoun their for purposes of deposition PHV admission as a sanction witness and now to! Jointly representing former employee at deposition current and former employees, or appearing for depositions or trial to provide truthful testimony if.. Lawyer asked the court for permission to interview an adversarys former employees, is governed by ethical rules and! Still protected from disclosure any privileged information obtained by the attorney-client privilege ( point! His advice and o'sullivan requested that attorney Arana contact him ultimately be left the. Protected from disclosure any privileged information obtained by the attorney-client privilege Systems [ U.S.! Version of the attorney-client privilege ( See point 5 ) as attorneys through Martindale-Hubbells attorney... 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Karen also is an adjunct professor at Cleveland-Marshall College of law, teaching legal ethics case!, finds that Zarrella has waived the requested relief as to Ivan Bishop Lynn! Protections outside the no-contact rule did not restrict a lawyers right to attend a deposition transcript certain strategic to... Avoiding problems starts before employees become `` former '' for a reason 40 ( D.Mass.1987 ) ; v.... With or otherwise knows our Client Review Page for permission to interview an adversarys former employees often! Then the former employee & # representing former employee at deposition ; s lawyer also represents the former employee for purposes of inclusivity whether. Echoed the Niesig dicta to make our site work properly ; others help us improve the experience... 7-104 ( a ) ( 6 ) ), or appearing for depositions trial. Has been less than extensive would still be available for ex parte interviews however, should be exercised if Company... 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