1115 (D. Md.1996)], an employment discrimination suit. [2]. Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 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 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? It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. These resources are not intended as a definitive statement on the subject addressed. U.S. Complex Commercial Litigation and Disputes Alert. The court refused. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. 1988).] Discussions between potential witnesses could provide opposing counsel material for impeachment. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. 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. 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 . This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. 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. discussion with former employees, or other sources. 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 . 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. 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. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. The consequences of a misstep range from losing the ability . at 5. endobj 39 0 obj >/Filter/FlateDecode/ID[36CE18A8C1A8084D921A73E68A65DB61>]/Index[34 7]/Info 33 0 R/Length 36/Prev 11576765/Root 35 0 R/Size 41/Type/XRef/W[1 2 0 . If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. 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. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. 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. 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 charges involve allegations by two former residents of the YDC. Bishop and Miller elected to have Pacific Life provide counsel for their depositions, and Schafer indicated that he wished to retain his own independent counsel, and he did so.***. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Id. The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. 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. Verffentlicht am 23. They might also be uncooperative at least at first. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. An adversarys former employees are often the most valuable witnesses in litigation. Even in the face of Pacific Life's untimeliness argument, Zarrella has failed to proffer any explanation as to why it waited approximately two months from first learning that Pacific Life's counsel intended to represent its former employees, until after Bishop and Miller's depositions were completed and after the discovery deadline had passed, before filing the instant Motion contending that such representation is unethical. Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. The employer paid the employee to render the work and now owns it. 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. 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). 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. 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. Preparing CRCP 30(b)(6) 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. 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. 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. 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. 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. 32 Most courts that have considered Peralta have found its reasoning persuasive. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. 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. 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. 2005-2023 K&L Gates LLP. 42 West 44th Street, New York, NY 10036 | 212.382.6600 Report Abuse Alena Shautsova Partner at Law Offices of Alena Shautsova no peer reviews 100% 2 client reviews Contact 917-475-0420 website Answered on Sep 12th, 2013 at 1:21 PM Depending on the claims, there can be a personal liability. 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: Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. 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). [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. The defense attorney should employ good sleuthing skills, including perhaps employing a private investigator, to identify, interview and potentially defend former employees at deposition and to develop . Former employees whose exposure has been less than extensive would still be available for ex parte interviews. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. 1115, 1122 (D. Md. The test that best balances the competing interests, the court said, is one that defines the word party in the no-contact rule to include three categories of people: corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporations alter egos) or, corporate employees whose acts or omissions in the matter under inquiry are imputed to the corporation for purposes of its liability, or, employees implementing the advice of counsel.. The applicability of the no-contact rule to an adversarys former employees varies from jurisdiction to jurisdiction, and sometimes even within a jurisdiction, so you must carefully research the law of every jurisdiction in which you litigate. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. 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 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. 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. But there are limits to the Stewart . 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. endstream endobj 70 0 obj <>stream Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. skelly151 : He can represent the witness only if an employee former or current of the defendant party or the witness has requested that he be his legal counsel during the deposition. In many cases, it makes sense for the Company to offer to provide the former employee counsel. 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. 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