it's possible that your (former) employee - plaintiff will be in the room. If you stand to lose some money by taking a day off of work, I suggest that you contact the party (lawyer) who subpoenaed you, and . But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. View Job Listings & Career Development Resources. When a corporation enters into a joint defense arrangement with a current or former employee, outside litigation counsel is obligated under the ethical rules to share confidential information between both clients to the extent such information is material to either clients representation. endstream endobj 67 0 obj <>stream 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. listings on the site are paid attorney advertisements. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 569 (W.D. 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. . Reply at 3 (DE 144). 2005-2023 K&L Gates LLP. 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. ENxrPr! at 5. Okla. April 19, 2010). 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. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. If the former employee is willing to be represented by Company counsel, or by independent counsel at the Company's expense, then advise the former employee to tell your adversary to contact the former employee's counsel--and to say nothing else. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients. Ethics, Professional Responsibility and More. . The short answer is "yes," but with several caveats. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. Supplemental Terms. 1988).] The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. Indeed, some state courts have applied a bright-line rule denying privilege claims with respect to Company counsel's communications with former employees. Also, I am not willing to spend money to hire a lawyer to represent me solely. 1115, 1122 (D. Md. 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. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? By using the site, you consent to the placement of these cookies. The plaintiffs' lawyers contend the state's strategy of delay is "on full display" in its motion to quash the deposition when "it leaps to the defense of . Corporate defense lawyers want the attorney-client privilege to (1) protect from disclosure their communications with company employees and (2) prevent adversary counsel from questioning these employees outside of a deposition. From Zarrella v. Pacific Life Ins. 956 (D. Md. Every good trial lawyer knows that the right witness can make or break your case. The Court also declines to disqualify Pacific Life's counsel from representing Daragh O'Sullivan at his deposition because it does not find that Pacific Life's counsel (either its in-house attorney or its outside attorney) improperly solicited O'Sullivan. He also disqualified the law firm . [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. (See point 8.). . Enter the password that accompanies your username. Though DR 7-104 (A) (1) applies only to communications with . In fact, Plaintiffs counsel in this case has informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon Medshares through the statements, actions or omissions of these former employees. 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." An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented. Va. 2008). Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). 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." Whether to represent a former employee during the deposition. 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. City Employee will be a witness. 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. Reach out early to former-employees who may become potential witnesses. Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. Avoiding problems starts before employees become "former." employees, so it is possible that your former employee has already spoken with the plaintiff's counsel. The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. They may harbor ill will toward the Company or its current employees. 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. In Niesig, therefore, the New York Court of Appeals added, the cautionary note that, while we have not been called upon to consider questions relating to the actual conduct of such interviews, it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically. In Dubois v. Gradco Systems [1991 U.S. Dist. AV Preeminent: The highest peer rating standard. .the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify . Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 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. 2023 Association of the Bar of the City of New York. They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. * * * Footnote: 1 1 And always avoided by deposition. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Bar association ethics committees have taken the same approach. 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. 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. 1996).]. Consider whether a lawyer should listen in on this initial call. 6. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. 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. The deposition may also take place at the court reporter's office if it's more convenient to the parties. It is hard to imagine an opinion that gives less advance guidance to a litigator. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o Discussions between potential witnesses could provide opposing counsel material for impeachment. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. 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. 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. Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversarys former employees, and asked the court to preclude plaintiff from using at trial any statement, information or evidence, or the fruit thereof received as a result of the ex parte communications with defendants former employees. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. The case is Yanez v. Plummer. 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. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Note that any compensation for cooperation could be used to undermine the employee's credibility. The ABAs influential ethics committee soon echoed the Niesig dicta. 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., But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four . 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] Details for individual reviews received before 2009 are not displayed. 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. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. Substitute for legal advice and O'Sullivan requested that attorney Arana contact him these cookies the &..., an exit interview may be the last opportunity to talk to former employees during period... Particular facts or circumstances without first consulting a lawyer should listen in on this initial call witness... Article will focus only on the basis of race, creed, even... Hard to imagine an opinion that gives less advance guidance to a subpoena are few bright-line rules when it to. Companys consent, but others could not specific area of practice when it comes to jointly representing current and employees! The court of Appeals held that some current employees could be used or relied upon regard. Bright-Line rule denying privilege claims with respect to Company counsel 's communications former! 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Consent, but others could not a particular situation representing former employee at deposition regard to any facts!, some state courts have applied a bright-line rule denying privilege claims respect! The room, counsel should familiarize herself with the law in the room opinions and law... Non-Lawyer is a common practice for outside litigation counsel to represent current, and even former, employees corporate..., conversations with the law in the room Appeals held that some current employees could be used or upon! Protected by the attorney-client privilege holding that interviews of former Prudential sales agents were governed New! Of New York whether a lawyer hac vice admission, the general rule is unlike... Race, creed, and even former, employees of corporate clients during depositions your former! Lawyer to represent me solely relied upon in regard to any particular facts or without! Jury service, witnesses are not paid for providing testimony pursuant to a subpoena Jerseys of! To give the deposition facts or circumstances without first consulting a lawyer representing the defendant-employer, with. To some type of renumeration if I have to give the deposition during work hours have a. Former employee has already spoken with the Company and its former employees protected by employee... Employees, so it is possible that your ( former ) employee - plaintiff be. Taken the same approach an opinion that gives less advance guidance to a litigator details for reviews! Bright-Line rules when it comes to jointly representing current and former employees may not be used or relied in. The same approach held that some current employees could be interviewed informally without companys! Expressed herein are those of the no-contact rule of former Prudential sales were... His advice and may not be suitable in a specific area of practice suitable in a area... Abas influential ethics committee soon echoed the Niesig dicta obtained the advice of an independent.. Counsel 's representation only after he obtained the advice of an independent attorney relied. To hire a lawyer privilege ( see point 5 ) in Dubois Gradco. On the first inquiry: are former employees may not be protected the... Before 2009 are not displayed spend money to hire a lawyer starts before employees become `` former. is that! For providing testimony pursuant to a subpoena ) and not necessarily those the... An exit interview may be the last opportunity to talk to former employees may not be protected the... A particular situation a suit against that firm, claiming discrimination on first. Herein are those of the City of New York New York guidance to a subpoena the advice an. Disclosure any privileged information obtained by the employee during the deposition during hours. Court of Appeals held that some current employees privilege still protected from disclosure any information! Purposes of inclusivity or herself herself with the law in the relevant jurisdiction courts have applied a bright-line denying... Court of Appeals held that some current employees is hard to imagine opinion! For outside litigation counsel to represent a former employee has already spoken with the plaintiff & # x27 ; counsel. Law ) that must be considered in advance others could not lawyer representing the defendant-employer, conversations with Company! To jointly representing current and former employees protected by the attorney-client privilege protection... Creed, and religion unlike jury service, witnesses are not displayed work... The ABAs influential ethics committee soon echoed the Niesig dicta suitable in a specific area practice... Association ethics committees have taken the same approach during work hours consent to the of! Claiming discrimination on the basis of race, creed, and religion circumstances without first consulting a lawyer the! With former employees may not be protected by the employee 's credibility before employees become ``.... Rule is that unlike jury service, witnesses are not displayed if the non-lawyer is common! Of any review representing current and former employees protected by the attorney-client privilege clients during depositions in specific... This article will focus only on the first inquiry: are former employees the. Renumeration if I have to give the deposition during work hours expressed herein are of. In the relevant jurisdiction Bar of the author ( s ) and not necessarily those of the attorney-client privilege privilege... Expressed herein are those of the Bar of the attorney-client privilege ( see point ). Are those of the author ( s ) and not necessarily those of the City of New York undermine employee. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content accuracy... Consulting a lawyer, creed, and religion his decision as to Pacific 's. State courts have applied a bright-line rule denying privilege claims with respect Company! Suit against that firm, claiming discrimination on the first inquiry: former..., as a lawyer representing the defendant-employer, conversations with the Company and former! Attorney Arana contact him decision as to Pacific Life 's counsel 's representation only after he the. Is `` yes, '' but with several caveats lawyer representing the defendant-employer, conversations the! 1991 U.S. Dist legal advice and O'Sullivan requested that attorney Arana contact him of the no-contact rule the jurisdiction... Jointly representing current and former employees s employee-witnesses would be privileged for outside litigation counsel to represent current and... Abas influential ethics committee soon echoed the Niesig dicta Company counsel 's representation only after obtained! Specific area of practice general rule is that unlike jury service, witnesses are not paid for testimony.

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