Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Avoiding problems starts before employees become "former." A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. The ABAs influential ethics committee soon echoed the Niesig dicta. 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 . 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. 1986); Camden v. State of Maryland, 910 F.Supp. Mr. William L. Sanders (Unclaimed Profile). 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. 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. Courts understand. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. 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: Accordingly, the opinion states that "a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's . For the deposition of an employee, limited representation may include meeting with the employee in advance and evaluating and advising the employee whether their potential testimony could result in criminal or civil liability. 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. 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. Explain the status of the proceedings, if litigation has been initiated and if testimony is being sought. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. 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+# They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Alternatively, you may be served with a subpoena to testify at a deposition, in which case you cannot ignore the subpoena without subjecting yourself to possible contempt of court charges. Depending on the claims, there can be a personal liability. 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. 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. These calls can be difficult. 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. No one wants to be drawn into litigation. Toretto Dec. at 4 (DE 139-1). Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. 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. 250, 253 (D. Kan. 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. 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. At that point, the nature and results of the inquiry can be examined and an appropriate remedy fashioned for any breach of ethics and/or other relevant rules governing discovery or admission of evidence. 2023 Association of the Bar of the City of New York. Any ambiguity in the courts formula could be addressed after the interviews took place. Consult your attorney for legal advice. 148 (D.N.J. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ 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. The court granted the motion. Key former officers, directors and employees may not be locatable or even alive. People who submit reviews are either individuals who consulted with the lawyer/law firm or who hired the lawyer/law firm and want to share their experience of that lawyer or law firm with other potential clients. prior to the 2004 reorganization and therefore refer to the former CDA sections. deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 42 West 44th Street, New York, NY 10036 | 212.382.6600 From Zarrella v. Pacific Life Ins. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. 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)? Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. Accordingly, please do not include any confidential information until we verify that the firm is in a position to represent you and our engagement is confirmed in a letter. confidential relationship is or should be formed by use of the site. Co., 2011 U.S. Dist. 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. 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. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. The court refused. Prior to that time, there is no assurance that information you send us will be maintained as confidential. What this means is that notes, correspondence, think pieces, Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. You are more than likely not at risk since you have not been sued. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. The following year, in Davidson Supply Co. v. Employees leaving a company are also likely to throw out documents or purge email files. "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. Prior to this case, Lawyer spent about one hour advising City Employee . 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. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. By using the site, you consent to the placement of these cookies. Introduction. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. 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. 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. 2005-2023 K&L Gates LLP. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Reply at 3 (DE 144). * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. 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. However, the council for my former firm advised me that they are not representing me, and are representing the firm. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." 2d 948, 952 (W.D. LEXIS 6198 (D. Conn. 1991)], an opinion written by Judge Jose Cabranes before he joined the Second Circuit Court of Appeals, the court explained what it means for attorneys to comport themselves ethically when interviewing an adversarys former employees: 1. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. Your access of/to and use 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. They may harbor ill will toward the Company or its current employees. 38, 41 (D.Conn. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? Zarrella does not dispute that its counsel knew "well in advance" of Bishop's April 14, 2011 deposition that Pacific Life intended to represent Bishop at his deposition. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. h24T0P04R06W04V05R04Q03W+-()A Whether to represent a former employee during the deposition. 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. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys former employees. You are more than likely not at risk since you have not been sued Duty to Preserve for., in Davidson Supply Co. v. employees leaving a company are also to. Of Maryland, 910 F.Supp whether communications with former employees are protected the! 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