Having a lawyer be the first to reach out is not always the best option. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. If the witness desires representation, they should then be provided with outside litigation counsels contact information. Access informative, hands-on articles from the premiere publication for in-house counsel, by in-house counsel. The content of the responses is entirely from reviewers. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. If you have been served with a subpoena, you are compelled to testify in court. 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. 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 The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. 2) Do I have to give a deposition, when the case details are not fresh to me? 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. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. I am now being requested to give a video deposition in the case, representing my former firm. This publication/newsletter is for informational purposes and does not contain or convey legal advice. confidential relationship is or should be formed by use of the site. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. Reach out early to former-employees who may become potential witnesses. Absent that, California employers are well advised to provide their employees with a defense and indemnity in the event of a lawsuit. 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. 1988).] [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 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. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. 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. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. advice, does not constitute a lawyer referral service, and no attorney-client or . The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . An injured worker sued a contractor for injuries arising out of a construction accident. Enter the password that accompanies your username. Our office locations can be viewedhere. 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. Id. [2]. 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. 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.) Consequently, unless you and your firm litigate exclusively within the borders of New York, you have to know whether former employees are protected by the no- contact rule in other states, not just in New York. In fact, deposition testimony can also be used in court at trial. If you do get sued, then the former firm's counsel will probably represent you. 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. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. The Association of Corporate Counsel (ACC) is the world's largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations, nonprofits and other private-sector organizations around the globe. A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. 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. 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. 1996).]. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Avoiding problems starts before employees become "former." 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.***. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. 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. hT0ESfK6+
@BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ U.S. Complex Commercial Litigation and Disputes Alert. 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. 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. 6. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. [See, H.B.A. 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. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? 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 adversarys management team or control group during their employment, or who were confidential employees, or who were extensively exposed to the adversarys confidential or privileged information during their employment; and (2) former employees whose acts or omissions during their employment were imputed to the former employer for liability purposes, or whose statements about their activities are considered binding admissions against the former employer under the rules of evidence. The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. 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. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] 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. at 6. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Depending on the claims, there can be a personal liability. The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. 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. Glover was employed by SLED as a police captain. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. 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. 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 motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. Although the court made no decision on . The Client Review Rating score is determined through the aggregation of validated responses. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. View Job Listings & Career Development Resources. 66 0 obj
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