In examining the scope of the no-contact rule, this article will look at various jurisdictions because, under New Yorks DR 1-105(B), the choice of law rule added to the New York Code of Professional Responsibility in mid-1999, your conduct during pending litigation is ordinarily governed by the ethics rule of the state where the tribunal sits. Thank you for your consideration. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. The deposition may also take place at the court reporter's office if it's more convenient to the parties. View Job Listings & Career Development Resources. Lawyers from our extensive network are ready to answer your question. 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. Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. ***. 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. The Client Review Rating score is determined through the aggregation of validated responses. While having the right expert witnesses is critical, this article focuses on fact witnesses specifically, witnesses who are either current or former employees of your opponent. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. Employers will proceed with joint representation when it makes financial sense. This is abroad standard. 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? 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. Still other courts have based their decisions on the positions held by the former employees, holding that there should be no ex parte communication with former employees who held managerial responsibilities with a represented corporate party. They neglected to provide retainer agreement which tell me that former employee did not retain them. Email us at nylerhelp@newyorklegalethics.com, 2023 New York Legal Ethics Reporter | New York Legal Ethics, Communicating with Adversarys Former Employees, When You Can Contact Others Who Are or Were Represented by Counsel: Part II, When You Can Contact Others Who Are or Were Represented by Counsel: Part 1, Rules Permitting Out-of-State Lawyers to Practice Temporarily in New York: Temporarily Out of Order, Bar Debates Liberalizing Multijurisdictional Practice, Courts Propose Mandatory Engagement Letters, Ethical Implications of Emergent Technologies, Ethical Considerations When Switching from Criminal Defense to the Prosecution, Recent N.Y. Ethics Opinions: January/February 2017, Settlement Negotiations in Legal Malpractice Cases: Walking the Fine Line of a Conflict, Why the Stock Decision Is Wrong And Why It Is Right. Give the deposition. 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. . 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." The short answer is "yes," but with several caveats. Is there any possibility that the former employee may become a party? The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. All Rights Reserved. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. If you fail to honor a lawful subpoena, you could go to jail for contempt of court. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . 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)? 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." This rating indicates the attorney is widely respected by their peers for high professional achievement and ethical standards. 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. There are numerous traps for the unwary in dealing with such witnesses. 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 . Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). Bar association ethics committees have taken the same approach. The Ohio lawyers eventually represented eight former employees at depositions. 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. 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. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. 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. 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 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. LEXIS 108229 (S.D. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. 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. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. The following year, in Davidson Supply Co. v. employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. 2005-2023 K&L Gates LLP. confidential relationship is or should be formed by use of the site. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Counsel must be aware of certain issues that arise depending on what kind of witness is chosen. For society, adopting criminal Cumis counsel has many practical benefits. Glover was employed by SLED as a police captain. These calls can be difficult. Or they simply may not care what happens to the Company. But there are limits to the Stewart . Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. [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).] 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." Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. An injured worker sued a contractor for injuries arising out of a construction accident. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." Details for individual reviews received before 2009 are not displayed. City Employee will be a witness. They might also be uncooperative at least at first. They avoid conflicts. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. AV Preeminent: The highest peer rating standard. 2023 Association of the Bar of the City of New York. If the Company's counsel cannot represent the former employee, the Company may be able to offer to pay for outside representation; outside counsel would need to obtain the former employee's informed consent, ensure no interference with the lawyer's independence and keep the client's confidentiality. 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 In fact, deposition testimony can also be used in court at trial. 1115 (D. Md.1996)], an employment discrimination suit. 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. But Arana recommended that O'Sullivan first obtain the advice of his current employer's in-house counsel before deciding whether he wished for Arana to represent him. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. 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. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. 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. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. 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 ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. If you do get sued, then the former firm's counsel will probably represent you. You should treat everyone . 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. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. 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. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. Distinguished: An excellent rating for a lawyer with some experience. Supplemental Terms. Give the deposition. 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. P.P.E., Inc. [986 F. Supp. Karen is a member of Thompson Hines business litigation group. 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. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. U.S. Complex Commercial Litigation and Disputes Alert. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. The case is Yanez v. Plummer. Lawyer represents Plaintiff. . 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. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. Retention of counsel can also provide former employees who lack experience with litigation greater confidence and willingness to cooperate. Martindale-Hubbell validates that a reviewer is a person with a valid email address. 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. Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. 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.. endstream endobj 70 0 obj <>stream Using one lawyer also deters a defendant from potentially entering into another settlement with the plaintiff after their employment ends or the case has been settled. Thompson Hines business litigation group this article will focus only on the lawyer 's behalf prohibit lawyers direct! Since filed a suit against that firm, claiming discrimination on the first inquiry: former! Be no bar should help ease the disruption and time lost from work depositions! 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