employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. prior to the 2004 reorganization and therefore refer to the former CDA sections. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? The former employee's testimony and discovery are of major importance. They may harbor ill will toward the Company or its current employees. 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." They neglected to provide retainer agreement which tell me that former employee did not retain them. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? 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. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. 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. "It is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak on the designated topics. 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+# The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. Thank you for your consideration. Wells Fargo Bank, N.A. The content of the responses is entirely from reviewers. . Enter your Association of Corporate Counsel username. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. Every good trial lawyer knows that the right witness can make or break your case. of this site is subject to additional discussion with former employees, or other sources. 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. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. You are more than likely not at risk since you have not been sued. 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. 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. [Emphasis added.]. 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. [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. 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. Richard F. Rice (Unclaimed Profile). 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. 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. 3. Karen is a member of Thompson Hines business litigation group. There are numerous traps for the unwary in dealing with such witnesses. Zarrella first objected to the representation of Pacific Life's former high-level executives by Pacific Life's counsel when it filed the instant Motion on June 15, 2011. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. Id. AV Preeminent: The highest peer rating standard. Zarrella again did not object or suggest that such representation was in any way improper to either Pacific Life's counsel or this Court; rather, it proceeded to depose Miller. City Employee will be a witness. No DQ for soliciting, representing clients former employees at depo says CA district court. 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 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.. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? (See point 8.). Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. representing former employee at deposition. 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 COMMUNICATIONS WITH FORMER EMPLOYEES. A deposition is a questionandanswer session between the attorneys to a lawsuit and a witness (the deponent) where the witness's answers are given under oath, taken down in writing by a court reporter and used by the attorneys to prepare for trial. 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. These calls can be difficult. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. it's possible that your (former) employee - plaintiff will be in the room. 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. 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. 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. 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. Our office locations can be viewedhere. Give the deposition. 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. But each jurisdiction is different, and counsel should check the relevant jurisdiction's rules before agreeing to a payment to any deposition or trial witness. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Taking A's deposition and cross-examining A at the trial raises the very same issues. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. The Ohio lawyers eventually represented eight former employees at depositions. 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. The ABAs influential ethics committee soon echoed the Niesig dicta. 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. The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. Va. 2008). 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., 2d 948, 952 (W.D. 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. Please explain why you are flagging this content: * This will flag comments for moderators to take action. L@ 'Ls m9.!/vA/|B d|8b`4JYm;V 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. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. The charges involve allegations by two former residents of the YDC. Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ . For more information, read our cookies policy andour privacy policy. 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 . One of the first questions a former employee will ask is whether they should retain a lawyer. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. 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. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. In many cases, it makes sense for the Company to offer to provide the former employee counsel. 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. 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. 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. 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. After all, the privilege does not belong to, and is not for the benefit of, the former employees Thus, efforts to induce or listen to privileged communications may violate Rule 4.4 which requires respect for the rights of third persons., 2. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. 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. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. Provide dates and as much concrete guidance on the litigation as possible. By in-house counsel, for in-house counsel. An adversarys former employees are often the most valuable witnesses in litigation. 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. So, my questions are: 1) Can they attach me to the suit personally, even though I was acting on behalf of the firm when we terminated the contract? The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. confidential relationship is or should be formed by use of the site. The following are important clauses for such. 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 . 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. This is abroad standard. 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. 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. fH\A&K,H` 1"EY Mr. William L. Sanders (Unclaimed Profile). Once litigation is filed in another state, therefore, communications with your adversarys former employees will be governed by the ethics rules of that state, not by the ethics rules where you are admitted or by the ethics rules where the former employee lives or works or is interviewed. 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. Your access of/to and use (See points 8 & 9). Is there any possibility that the former employee may become a party? See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . Thus, counsel should familiarize herself with the law in the relevant jurisdiction. 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. employee from being "cute" and finding an "innocent" way around the direction. %PDF-1.6 % 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. Employee Fired For Deposition Testimony. Reply at 3 (DE 144). The information provided on this site is not legal v. LaSalle Bank Nat'l Ass'n, No. This site uses cookies to store information on your computer. 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. 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? Obtain agreements to cooperate for key employees. Prior to this case, Lawyer spent about one hour advising City Employee . 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). 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 . 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. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. No one wants to be drawn into litigation. 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. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. 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. 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. Avoiding problems starts before employees become "former." Assessing the likelihood of disclosure would depend upon weighing such factors as: the positions of the former employees in relation to the issues in the suit;, whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise;, the nature of the inquiry by opposing counsel; and, how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.. Lawyer represents Plaintiff. 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). Courts understand. The court refused. 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. ENxrPr! Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 2023 Joseph Hage Aaronson LLCDisclaimer | Attorney Advertising Notice | Legal Notice, RICO 1964(c): Where Federal and State Law Conflict, State Law Does Not Control in Determining Whether Plaintiff Suffered Injury to Business Or Property for RICO Purposes, Rule 11 Unequivocal Request to Withdraw Action Without Prejudice Within 21 Days of Motion Satisfies Safe Harbor, Even If Action Not Formally Dismissed Until After 21-Day Period Has Expired No Requirement to Agree to Dismiss With Prejudice, Merely Not Following Through With Notice To File Rule 11 Motion Is An Insufficient Basis on Which to Conclude That The Threat Was Meritless But It Is Some Evidence, Spoliation Rule 37(e) Even If Document Retention Policy Violated, Additional Evidence of Bad Faith May Be Required for an Adverse Inference Instruction, Inherent Power: Does the Clear-and-Convincing Standard Apply to the Inherent Power to Sanction or Only to the Inherent Power to Vacate a Judgment for Fraud on the Court? 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