former employee were privileged. 148 (D.N.J. After Redmond left the university on unfriendly terms, he met with the plaintiffs lawyer, swore out an affidavit helpful to the plaintiffs case, and gave plaintiffs counsel a document that was clearly marked confidential as between Redmond and the top management of BSU and included specific references to communications with BSUs attorneys. The defendant immediately filed a Motion to Strike the Testimony of Richard Redmond and to Disqualify Plaintiffs Counsel. 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. 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. . Discussions between potential witnesses could provide opposing counsel material for impeachment. These calls can be difficult. 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. 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. 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. 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. They might also be uncooperative at least at first. 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 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. There are numerous traps for the unwary in dealing with such witnesses. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ The former employee's testimony and discovery are of major importance. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. 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. Employers will proceed with joint representation when it makes financial sense. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. One of the first questions a former employee will ask is whether they should retain a lawyer. In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . endstream endobj 69 0 obj <>stream When the factors point to a substantial risk of disclosure of privileged matters (as opposed to the mere risk that the adverse party will learn damaging information), then appropriate notice should be given to the former employees concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employers counsel should be notified prior to any ex parte interview. (Emphasis added.) 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. endstream endobj 68 0 obj <>stream Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? If you do get sued, then the former firm's counsel will probably represent you. Ethics, Professional Responsibility and More. 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. Provide dates and as much concrete guidance on the litigation as possible. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. 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. Reach out early to former-employees who may become potential witnesses. 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 Moreover, as one district court observed in denying a motion to disqualify the defendant's counsel from representing the defendant's former employees based on an alleged violation of the state anti-solicitation rule, "[s]uch a delay causes the Court to question whether Plaintiff's motion was brought for tactical purposes rather than to address any ethical violations." 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. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. Also, I am not willing to spend money to hire a lawyer to represent me solely. 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). Between Dec. 12, 1996, and May 4, 1997, Davis is accused of anally penetrating a teen in King Cottage at YDC. [2]. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. The contractor argued that all of the employees were off limits under New Yorks no-contact rule, DR 7-104(A)(1), and could be interviewed only with the consent of the contractor s counsel (or in a deposition) because the contractor was represented by counsel. Reply at 3 (DE 144). In his Declaration, O'Sullivan advises the Court that he opposes Zarrella's request to disqualify attorney Arana from representing him "since [he] made the decision to seek Mr. Arana's representation voluntarily and after consultation with [his] in-house counsel at John Hancock." 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. swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. 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. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Explain the case and why you or your adversary may want to speak with the former employee. View Job Listings & Career Development Resources. 303 (E.D. The short answer is "yes," but with several caveats. The charges involve allegations by two former residents of the YDC. 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. How long ago did employment cease? CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 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). Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. 42 West 44th Street, New York, NY 10036 | 212.382.6600 2) Do I have to give a deposition, when the case details are not fresh to me? 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.***. 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. Such Consider whether a lawyer should listen in on this initial call. Proc. . No one wants to be drawn into litigation. 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 . Id. 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). 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., Mich. 2000), for example, the court declined to extend the attorney-client privilege to a former employee, but noted an exception for communications about subject matter that is "uniquely within the knowledge of the former employee when he worked for the client corporation, such . 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. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. 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. Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. Verffentlicht am 23. 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. 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. Karen is a member of Thompson Hines business litigation group. 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. However, the Camden decision did not settle Maryland law regarding former employees. Communications between the Company's counsel and former employees may not be privileged. 3. 38, 41 (D.Conn. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. Please explain why you are flagging this content: * This will flag comments for moderators to take action. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? 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. With joint representation when it makes financial sense 's counsel and former employees See, e.g. Rentclub! 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