representing former employee at depositionrepresenting former employee at deposition

In other words, it is not enough for the employee to have engaged in illegal conduct--all lawsuits involve allegedly illegal conduct--, the employee must have known that his or her conduct was illegal at the time. Seems that the risks outweigh the rewards. 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. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. 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. 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. This publication/newsletter is for informational purposes and does not contain or convey legal advice. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. 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$ 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. 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. The employer paid the employee to render the work and now owns it. . Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Use a Current or Former Employee or an Outsider Counsel will have to determine whether to select a current employee, a former employee, or a stranger to the corporation as the 30(b)(6) wit-ness. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Toretto Dec. at 4 (DE 139-1). Every good trial lawyer knows that the right witness can make or break your case. 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. 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. Avoiding problems starts before employees become "former." [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. . This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 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. 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? 1115 (D. Md.1996)], an employment discrimination suit. Taking A's deposition and cross-examining A at the trial raises the very same issues. 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." 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. 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? 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. AV Preeminent: The highest peer rating standard. Preparing CRCP 30(b)(6) Deposition . In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. of this site is subject to additional swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. As to any communication between defendant's counsel and a former employee whom counsel does not represent, which bear on or otherwise potentially affect the witness's testimony, consciously or unconsciously, no attorney-client privilege applies. During the deposition, a court reporter takes notes of the proceeding. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. 651, 658 (M.D. Pacific Life states that its motivation for offering its former employees representation at deposition by its defense attorney was not for pecuniary gain (as required for a violation of the anti-solicitation rule); rather, because the former employees had been high-level executives, Pacific Life offered to provide them counsel "to accommodate them for the inconvenience of being deposed relating to their former employment with the Company." hZn7@_ @6@5[huy5Xh4HQEz lMOYPtRST>lbnnjovomJo a@s ?o~6/+f3q)D>+kr1~9Zfv5UtQyhTT#(&)$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+# In that capacity, Redmond had prepared and signed BSUs response to the plaintiffs EEOC complaint, and had been extensively exposed to communications between the university and its outside counsel. 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. What are the different Martindale-Hubbell Peer Review Ratings?*. Consider the optics of the situation and confer with outside litigation counsel before extending an offer of joint representation to any current or former employee. Whether to represent a former employee during the deposition. 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***. The information provided on this site is not legal 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. Details for individual reviews received before 2009 are not displayed. How long ago did employment cease? P.P.E., Inc. [986 F. Supp. 2013 WL 4040091, *6 (N.D. Cal. 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. But there are limits to the Stewart . 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. 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. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not 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. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R 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. 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. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). They may harbor ill will toward the Company or its current employees. 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. 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: Is there any possibility that the former employee may become a party? 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. Reply at 3 (DE 144). Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. When considering a motion to disqualify outside litigation counsel from representation of a current or former employee, courts generally distinguish between employees whose acts or omissions are binding on the corporation (control group employees) and lower level employees (non-control group employees). Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. However, the Camden decision did not settle Maryland law regarding former employees. The court granted the motion. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. Some are essential to make our site work properly; others help us improve the user experience. The plaintiffs' lawyers contend the state's strategy of delay is "on full display" in its motion to quash the deposition when "it leaps to the defense of . 3. 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. 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. Employee Fired For Deposition Testimony. Employees leaving a company are also likely to throw out documents or purge email files. Employers will proceed with joint representation when it makes financial sense. 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. How can the lawyer prove compliance with RPC 4.3? Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. 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 question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. 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. Enter the password that accompanies your username. 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. 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. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Verffentlicht am 23. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. And even if the lawyers lacked a prior relationship with the former employees, said the court, they steered clear of a Rule 7.3 violation because they did not solicit for pecuniary gain. Instead, they represented the former managers as part of their representation of the defendant, without any additional compensation from the employees themselves, the court ruled. [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).] endstream endobj 69 0 obj <>stream 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. 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