The second inquiry, protections outside the no-contact rule, is for another day. The rationale for the rule is that A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. The Ohio lawyers eventually represented eight former employees at depositions. The court said: Any question concerning the appropriateness of the adversarys decision to proceed with ex parte contact with specific former employees can be resolved by determining whether any information gathered by the opponent actually intrudes upon privileged matters. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ Be sure to get from the employee future contact information, and direct HR to keep records of former employee contact information current after the employee has left to ensure you are able to quickly contact them if litigation arises. 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. 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. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. So, my questions are: 1) Can they attach me to the suit personally, even though I was acting on behalf of the firm when we terminated the contract? Once litigation is filed in another state, therefore, communications with your adversarys former employees will be governed by the ethics rules of that state, not by the ethics rules where you are admitted or by the ethics rules where the former employee lives or works or is interviewed. 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 . 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. 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 deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify . . endstream endobj 69 0 obj <>stream Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. You are more than likely not at risk since you have not been sued. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. 1115, 1122 (D. Md. 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? P.P.E., Inc. [986 F. Supp. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? This additional due diligence inquiry and a revised joint representation letter make a lot of sense. The Client Review Rating score is determined through the aggregation of validated responses. 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. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. Such CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. Counsel must understand that agreeing to represent a former employee individually for purposes of a deposition may not necessarily protect all communications with that witness under the umbrella of attorney-client privilege. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Enter the password that accompanies your username. Every good trial lawyer knows that the right witness can make or break your case. [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).] 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. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. 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. 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. Martindale-Hubbell validates that a reviewer is a person with a valid email address. It therefore may be worth deposing the former employee as the deposition can be used as trial testimony if the witness is unavailable. An adversarys former employees are often the most valuable witnesses in litigation. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. 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. %PDF-1.6 % What are the different Martindale-Hubbell Peer Review Ratings?*. 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. 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. 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. Prior to this case, Lawyer spent about one hour advising City Employee . The information provided on this site is not legal For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. (See point 8.). * * * Footnote: 1 1 And always avoided by deposition. 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. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. 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. 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. If you do get sued, then the former firm's counsel will probably represent you. You should treat everyone . 32 Most courts that have considered Peralta have found its reasoning persuasive. Courts understand. The content of the responses is entirely from reviewers. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. 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. 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). In Glover, Lydia Glover (Glover) brought a retaliation claim under Title VII against her former employer, the South Carolina Law Enforcement Division (SLED), claiming that she was fired because of her deposition testimony in a Title VII lawsuit. The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. 66 0 obj <>stream In many cases, it makes sense for the Company to offer to provide the former employee counsel. Attorneys that receive reviews from their peers, but not a sufficient number to establish a Martindale-Hubbell Peer Review Rating, will have those reviews display on our websites. 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. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. 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. 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