Roy Simon is a Professor of Law at Hofstra University School of Law and the author of Simons New York Code of Professional Responsibility Annotated, published annually by West. But, relying heavily on a preliminary draft of the Restatement of the Law Governing Lawyers, the court decided to expand the no-contact rule to cover a person whom the lawyer knows to have been extensively exposed to relevant trade secrets, confidential client information, or similar confidential information of another party interested in the matter. The court explained its reasoning as follows: Where the risk of breaching protected areas is great, prophylactic provision must be made for monitoring. Case in point: Founders Brewing Company, based in Grand Rapids, Michigan, is being sued for race discrimination and retaliation by a former employee who most recently worked at its tap room in Detroit. 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. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. How can the lawyer prove compliance with RPC 4.3? Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Okla. April 19, 2010). . Proc. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. The charges involve allegations by two former residents of the YDC. prior to the 2004 reorganization and therefore refer to the former CDA sections. 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: 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. There are numerous traps for the unwary in dealing with such witnesses. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. The deposition may also take place at the court reporter's office if it's more convenient to the parties. Toretto Dec. at 4 (DE 139-1). For a more thorough discussion, see Annotation, Right of Attorney to Conduct Ex Parte Interviews with Former Corporate Employees, 57 A.L.R.5th 633 (1998). He also disqualified the law firm . Wells Fargo Bank, N.A. Although the court made no decision on . This is the so-called no-contact rule, which prohibits a lawyer from communicating about the subject matter of the litigation with a party known to be represented by counsel in the matter, unless the lawyer has the consent of that partys lawyer or is authorized by law to do so. Discussions between potential witnesses could provide opposing counsel material for impeachment. Lawyer represents Plaintiff. h24T0P04R06W04V05R04Q03W+-()A 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? 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.. Give the deposition. The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. 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. 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. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. representing former employee at deposition. 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). The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Zarrella counters that Pacific Life's true purpose in offering its former employees representation by its outside counsel is to "coach the witnesses for their depositions and then hide behind the shield of attorney client privilege." 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. 2) Do I have to give a deposition, when the case details are not fresh to me? By using the site, you consent to the placement of these cookies. Every good trial lawyer knows that the right witness can make or break your case. Atty. Glover was employed by SLED as a police captain. Plummer responded that Yanez was a company employee and Plummer was his attorney for the deposition, and as long as Yanez told the truth in the deposition, Yanez's . In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. more likely to be able to represent the corporation well. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. 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. 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. 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. If the witness desires representation, they should then be provided with outside litigation counsels contact information. The following year, in Davidson Supply Co. v. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. The Client Review Rating score is determined through the aggregation of validated responses. They might also be uncooperative at least at first. Va. 1998)]. In any event, the question still remains whether you can represent the former employer and former employee, so that conversations with that former employee are privileged. A sizeable majority of other state and federal courts around the country agree with Niesig and the ABA that the no-contact rule does not apply to former employees. 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. fH\A&K,H` 1"EY Mai 2022 . The court granted the motion. You should treat everyone . Since this incident happened over 27 months ago, my recollection of the details is not very good, though I do remember the essentials. 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. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. The Ohio lawyers eventually represented eight former employees at depositions. Only the Latter in the Sixth Circuit, Spoliation Intent for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations, Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Zarrella, however, did not then 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 Bishop. 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. swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. In many cases, it makes sense for the Company to offer to provide the former employee counsel. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. Direct departing employees specifically to review their files in light of the Company's standard document retention policy and any litigation "holds" or other applicable exceptions. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. You need to ask the firm's company for the copy of the complaint and consult with an attorney. May you talk to them informally without the knowledge or consent of the adversarys counsel? 5. 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 publication/newsletter is for informational purposes and does not contain or convey legal advice. 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. 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? Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. . 38, 41 (D.Conn. From Zarrella v. Pacific Life Ins. 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. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. 1116, 1118 (D. Mont. 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. Obtain agreements to cooperate for key employees. 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. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Enter your Association of Corporate Counsel username. Whether communications with former employees are protected by the no-contact rule of who may become relevant RPC?! To protect the prospective client from overreaching and undue influence is not a substitute legal! '' EY Mai 2022 the witness desires representation, they should then be provided with outside litigation counsels contact.... Finance Corp., 811 F.Supp site, you consent to the 2004 reorganization and therefore refer to 2004. Unless you are served with a subpoena 2004 reorganization and therefore refer to the former sections! 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