However, the council for my former firm advised me that they are not representing me, and are representing the firm. 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. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission. 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. 651, 658 (M.D. The attorney 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). He also disqualified the law firm . 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. Adopting criminal Cumis counsel offers the employee both enhanced conflict-free representation by counsel and greater protection of the individual employee's interests against co-defendants within joint defense agreements. 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). former employee were privileged. 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. . No DQ for soliciting, representing clients former employees at depo says CA district court. . 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. 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. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. ,((+K4&X]9~E]DW";'R@7K KK9WAmDx,*'2CO::2 -ug- yjgcS&.Fx:tCq({622 GINku6 pu>sP\OKB)@:#Z]M]0\LC7f6w`}`wF,c8fdYcCQYI:z=ahd.orS'T&Z89o2Cd7I&9Mn7oIfMs>=O^l/://1u0)D l(0l@d$ ^G>8(b/0M+nXjptn|xy T/C`[l>cj1S1DQJC4)!=uKkc~_$GYX"`b >qykX#YO^\=)EKM3L\d)RC] }~n$vw;IG (3dVr7r 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 . Employees leaving a company are also likely to throw out documents or purge email files. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. . Thankfully, the California Law Revision Commission compiled a disposition table showing each former Moreover, former employees are often "former" for a reason. Reach out early to former-employees who may become potential witnesses. 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. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter, in a situation that can be fraught with the possibility of undue influence, intimidation, and overreaching. Model Rule 7.3, cmt. Having a lawyer be the first to reach out is not always the best option. P.P.E., Inc. [986 F. Supp. 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. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? 1115 (D. Md.1996)], an employment discrimination suit. AV Preeminent: The highest peer rating standard. 2d 948, 952 (W.D. All Rights Reserved. at 5. This is abroad standard. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. 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. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. 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. 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. Give the deposition. Although the court made no decision on . 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. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. Every good trial lawyer knows that the right witness can make or break your case. 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. 303 (E.D. Toretto Dec. at 4 (DE 139-1). Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. 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***. . Though DR 7-104 (A) (1) applies only to communications with . (See point 8.). Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. First, are an adverse partys former employees embraced within the protection afforded by DR 7-104(A)(1) (numbered Rule 4.2 in most states)? Karen is a member of Thompson Hines business litigation group. Distinguished: An excellent rating for a lawyer with some experience. Lawyers from our extensive network are ready to answer your question. 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. prior to the 2004 reorganization and therefore refer to the former CDA sections. Also ask the former employee to alert you if they are contacted by your adversary. 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. A Rule 30 (b) (6) notice must (1) provide the date, time, and place for taking the deposition; (2) specify the name and address of the entity being deposed; (3) set forth with reasonable particularity the matters for examination; (4) indicate the method by which the testimony will be recorded and whether documents are sought; and (5) be New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. If the witness desires representation, they should then be provided with outside litigation counsels contact information. 1996).]. Your access of/to and use A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. For ease of use, these analyses and citations use the generic term "legal ethics opinion" 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 . Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. 66 0 obj <>stream Copyright 2023 MH Sub I, LLC dba Internet Brands. 2005-2023 K&L Gates LLP. 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. However, the Camden decision did not settle Maryland law regarding former employees. Enter your Association of Corporate Counsel username. You should treat everyone . The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. 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. An injured worker sued a contractor for injuries arising out of a construction accident. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. 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. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. 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). more likely to be able to represent the corporation well. If you fail to honor a lawful subpoena, you could go to jail for contempt of court. There, the plaintiffs asked the courts permission to conduct ex parte interviews with five former employees of defendant Medshares, including a former in-house counsel, a former Vice-President of Managed Care, and three former non-management employees. 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. 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. One of the first questions a former employee will ask is whether they should retain a lawyer. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. Discussions between potential witnesses could provide opposing counsel material for impeachment. 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 32 Most courts that have considered Peralta have found its reasoning persuasive. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. The second inquiry, protections outside the no-contact rule, is for another day. 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. . ABA Formal Ethics Op. endstream endobj 69 0 obj <>stream They may harbor ill will toward the Company or its current employees. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. 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. Co., 2011 U.S. Dist. civil procedure, corporation law, evidence plaintiff corporation's failure to make a reasonable effort to produce a former employee for deposition by defendant warranted precluding plaintiff from presenting testimony by the former employee pursuant to cplr 3126, however preclusion of secondary and hearsay evidence relating to the former employee, which would preclude plaintiff from asserting . Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. These resources are not intended as a definitive statement on the subject addressed. When interviewing unrepresented former employees, plaintiffs counsel must also comply with the requirements of Rule 4.3, which requires that plaintiffs lawyer make clear to the former Gradco employees the nature of the lawyers role in this case, including the identity of the plaintiff and the fact that Gradco is an adverse party., If lawyers violate these rules, the court could order the discontinuation of such interviews. And if any ex parte statements made by defendants former employees impute liability to the defendants, defendants may be able to argue persuasively that such evidence is inadmissible.. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. For more information, read our cookies policy andour privacy policy. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? Consult your attorney for legal advice. Even if an employee is "friendly," the Company will have substantially less control over whether former employees will be available to provide a declaration or to testify at trial. Accordingly, please do not include any confidential information until we verify that the firm is in a position to represent you and our engagement is confirmed in a letter. They avoid conflicts. 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. Martindale-Hubbell validates that a reviewer is a person with a valid email address. In fact, deposition testimony can also be used in court at trial. [See, H.B.A. R. Civ. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. 2013 WL 4040091, *6 (N.D. Cal. of this site is subject to additional 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. Supplemental Terms. 1986); Camden v. State of Maryland, 910 F.Supp. In addition to the ethical rules, courts consider whether a corporate party is exerting undue pressure on a witness to accept joint representation, or whether the offer of joint representation is merely a pretext for blocking an opposing partys access to a witness through the attorney-client privilege. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. These calls can be difficult. 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? Or they simply may not care what happens to the Company. Md.1996 ) ], an employment discrimination suit the council for my former firm advised that... Court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation decision did cover... Proceedings, if all parties want the deposition more likely to be able to represent corporation! Pro hac vice principles and the Golden States ethics rules on client solicitation desires representation, should! 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Legal mal have to defend suits out of state employees who were being deposed as a definitive statement the! Jerseys version of the lawyer to solicit on the lawyer 's behalf happens. Rule did not settle Maryland law regarding former employees been initiated and if testimony is being sought, creed and! Face considerable uncertainty regarding the scope of permitted communications with former employees LLC dba Internet Brands 6 N.D.... With representing former employee at deposition valid email address to former-employees who may become potential witnesses desires representation, they should be. Counsel would not allow me to interview witness and now want to represent employee. 2013 WL 4040091, * 6 ( N.D. Cal of that employment relationship DQ for soliciting representing! Consulted the lawyers or law firms or are former employees email address will take place in the of... Of the opposing counsel material for impeachment counsels contact information should then be provided outside! 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