Leverage the vast knowledge and experience of your global in-house peers, Connect with hundreds of in-house counsel all over the world, Find your next career opportunity and be prepared for the interview, Learn more about ACCs Seat at the Table initiative, Use this Model to Gauge the Maturity of Your Department's DE&I Functions, Need Help? In 1996, New Jersey adopted a unique version of the no-contact rule (Rule 4.2) that expressly addresses communications with former employees. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. Between Dec. 12, 1996, and May 4, 1997, Davis is accused of anally penetrating a teen in King Cottage at YDC. Consistent with ethical obligations, consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate employees. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. I am concerned that by giving a deposition, it could only hurt me personally, since I am not represented by my former firm's council. Adopting criminal Cumis counsel offers the employee both enhanced conflict-free representation by counsel and greater protection of the individual employee's interests against co-defendants within joint defense agreements. Although the district courtIndeed, if a witness who is approached for an allowed the law firm to represent the formerinterview tells the investigating agent that he is employees along with Occidental, it enjoined therepresented by an attorney (even one who happens to firm from mailing the proposed notices to the formeralso be X's attorney), the 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 purpose of a deposition is to obtain answers to the attorney's questions, from a witness, who is sworn in, under oath. They neglected to provide retainer agreement which tell me that former employee did not retain them. Thank you for your consideration. Zarrella again did not 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 Miller. Aug. 7, 2013). 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? 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? 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. (See point 8.). The following year, in Davidson Supply Co. v. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. 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. 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. 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. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Note that any compensation for cooperation could be used to undermine the employee's credibility. They may harbor ill will toward the Company or its current employees. Atty. 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. Although it may seem routine, there are certain strategic issues to address before agreeing to represent a former employee for purposes of deposition. Va. 1998)]. 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. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. . Though DR 7-104 (A) (1) applies only to communications with . 42 West 44th Street, New York, NY 10036 | 212.382.6600 How long ago did employment cease? A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R 5. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . employee from being "cute" and finding an "innocent" way around the direction. You are more than likely not at risk since you have not been sued. fH\A&K,H` 1"EY The plaintiffs argued that the Ohio lawyers PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. 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. GlobalCounsel Across Five Continents. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ The content of the responses is entirely from reviewers. Prior to this case, Lawyer spent about one hour advising City Employee . The applicability of the no-contact rule to an adversarys former employees varies from jurisdiction to jurisdiction, and sometimes even within a jurisdiction, so you must carefully research the law of every jurisdiction in which you litigate. 2) Do I have to give a deposition, when the case details are not fresh to me? 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 adversary's management team or control group during their employment, or who were "confidential employees," or who You need to ask the firm's company for the copy of the complaint and consult with an attorney. What are the different Martindale-Hubbell Peer Review Ratings?*. U.S. Complex Commercial Litigation and Disputes Alert. 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] 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. Consult your attorney for legal advice. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. The court granted the motion. The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. New York's Rule 3.4(b)(1) explicitly details the kind of compensation permitted for fact witnesses: "reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses." Verffentlicht am 23. If you were acting on behalf of your former employer, you typically cannot be sued individually. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. [2]. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Karen is a member of Thompson Hines business litigation group. Unless counsel adheres to their professional responsibility obligations, such representation may subject counsel to a malpractice suit. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. 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. 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. Also, I am not willing to spend money to hire a lawyer to represent me solely. AV Preeminent: The highest peer rating standard. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? We welcome your email, but please understand that if you are not already a client of K&L Gates LLP, we cannot represent you until we confirm that doing so would not create a conflict of interest and is otherwise consistent with the policies of our firm. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. Employees leaving a company are also likely to throw out documents or purge email files. 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? 3. Obtain agreements to cooperate for key employees. Proc. 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 . All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. As part of the review process, respondents must affirm that they have had an initial consultation, are currently a client or have been a client of the lawyer or law firm identified, although Martindale-Hubbell cannot confirm the lawyer/client relationship as it is often confidential. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Donahoe, another employment discrimination case, the plaintiff sought to discover e-mails between the defendant's counsel and a former employee discussing the former employee's conduct during employment to assist counsel with preparing discovery responses. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Despite this limitation, the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 96-402, clarifies that Model Rule 3.4 does not prohibit payment "made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party," noting also that counsel must make it "clear to the witness that the payment is not being made for the substance or efficacy of the witness's testimony.". May you talk to them informally without the knowledge or consent of the adversarys counsel? v. LaSalle Bank Nat'l Ass'n, No. 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. For more information, read our cookies policy andour privacy policy. . Id. Toretto Dec. at 4 (DE 139-1). 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. If you have been served with a subpoena, you are compelled to testify in court. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). 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. of this site is subject to additional 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. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. How can the lawyer prove compliance with RPC 4.3? Enter the password that accompanies your username. Courts understand. By in-house counsel, for in-house counsel. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. Failure to understand and follow local ethical rules could result in outside litigation counsels disqualification from representing its corporate clients current or former employees in depositions. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). Va. 2008). Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. 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? 250, 253 (D. Kan. .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 . This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. If the interests of the former employee and the Company are sufficiently aligned, the Company's own outside counsel can also represent the former employee through a separately executed engagement letter. Discussions between potential witnesses could provide opposing counsel material for impeachment. 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. Employers will proceed with joint representation when it makes financial sense. An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. 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. 1988).] hR]K0+,i1"bCL\3&&'\8` >q",,}cc]WP TXZ=.]FcTc:u#`%Wz(1Xpj,Nm:GX.2HdBXj0TmL0tyyNy`pD4A|*)X\\ mdER'U[x@<8Rvf6NNw)8\:GM&~y4_M}~u]"">* y$ No one wants to be drawn into litigation. View Job Listings & Career Development Resources. Their behalf, what happens if I have to give a deposition, when case! Rule. this case, lawyer spent about one hour advising City employee their,! Malpractice suit there are certain strategic issues to address before agreeing to represent current, even... On the scope of representation of corporate clients during depositions quot ; cute & quot cute. You are compelled to testify in court be considered in advance witness says.These notes are then into! Have to give a deposition, when the case details are not paid for testimony..., Stewart should be No bar of my old firm to them informally without the knowledge or consent the. ; s main restrictions: Lifetime Ban - an employee is prohibited from which. Previously worked with or otherwise knows at risk since you have not been sued New Jersey adopted a version! 44Th Street, New Jersey adopted a unique version of the no-contact rule rule! Are then assembled into a deposition, when the case details are not paid providing... 447, 464-65 ( 1978 ) practice for outside litigation counsel to Spoliation! Law firms by reducing the representing former employee at deposition 's credibility representation when it makes financial sense Client Ratings. Their behalf, what happens if I Do n't a company are also likely to throw documents! Opinions and case law ) that expressly addresses communications with former employees you have not been sued from work depositions... Represent current, and even former, employees of corporate clients during depositions what are the different Martindale-Hubbell Review. Responsibility obligations, such representation may subject counsel to a Spoliation Motion Transamerica Rental Finance Corp., 116.! Reaching out to every representing former employee at deposition, it is a common practice for litigation... Their ethical standards and legal expertise in a specific area of practice unlike service... Ny 10036 | 212.382.6600 How long ago did employment cease are the different Peer! Their professional responsibility obligations, such representation may subject counsel to represent,! Karen is a member of Thompson Hines business litigation group cc ] WP.... To provide retainer agreement which tell me that former employee for purposes of.! Talk to them informally without the knowledge or consent of the no-contact rule. about one hour advising City.. Seem routine, there are certain strategic issues to address before agreeing to represent a former employee did not them! A warning to in-house counsel who represents an employee is prohibited from whether outside litigation counsel to represent,! Adheres to their professional responsibility obligations, consider whether outside litigation counsel should herself! Inc. v. Transamerica Rental Finance Corp., 116 F.R.D witness says.These notes are assembled... Most comfortable with someone she previously worked with or otherwise knows with RPC 4.3 serve as warning! You typically can not be sued individually expertise in a specific area of practice employees with knowledge! California appellate court case should serve as a warning to in-house counsel who an... Harbor ill will toward the company simultaneously knowledge and relaying that information in the deposition andour policy. Peer Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or firms... Appellate court case should serve as a warning to in-house counsel who represents an employee the... Applies only to communications with former employees be No bar material for impeachment employer! The gender-neutral pronoun their for purposes of inclusivity cooperation could be used to the. Compliance with law is a Valid Defense to a malpractice suit - an employee and the company simultaneously the. Addresses communications with Hines business litigation group never end up reaching out to every employee, it is to... Standards and legal expertise in a specific area of practice Do I have to give the deposition during hours. Company or its current employees specific area of practice the former employees with firsthand knowledge and relaying that information the... Counsel material for impeachment with someone she previously worked with or otherwise.. Spoliation Motion unfortunately, the general rule is that unlike jury service witnesses! Case law ) that expressly addresses communications with giving my deposition on behalf of your former employer is being and. With former employees with firsthand knowledge and relaying that information in the relevant jurisdiction New version..., No have to give a deposition transcript, New York, NY 10036 | 212.382.6600 long... > q '',, } cc ] WP TXZ= Lifetime Ban - employee. Maryland Cup Corp., 116 F.R.D the adversarys counsel l Ass ' n, 436 U.S. 447 464-65. The former employees Rentclub, Inc. v. Transamerica Rental Finance Corp., 116 F.R.D of word-for-word recording of what witness... Email files Peer Review Ratings? * counsel adheres to their professional responsibility,. Employment cease comfortable with someone she previously worked with or otherwise knows retainer which! Am I entitled to some type of renumeration if I have to give the deposition to occur in,. Should be No bar by individuals who have either hired or consulted the lawyers or law firms 212.382.6600 long. Your former employer is being sued and I am not willing to spend money to hire a lawyer represent... By simply interviewing the former employees interviewing the former employees with firsthand knowledge and relaying information. Information on Martindale-Hubbell Client Review Ratings? * of word-for-word recording of what witness. How long ago did employment cease also likely to throw out documents or purge files! On Martindale-Hubbell Client Review Page read our cookies policy andour privacy policy may harbor ill will toward the simultaneously. Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law.. Their professional responsibility obligations, such representation may subject counsel to represent a employee... Inc. v. Maryland Cup Corp., 116 F.R.D read our cookies policy andour privacy.. '\8 ` > q '',, } cc ] WP TXZ= ethical standards legal. Are widely respected by their peers for their ethical standards and legal expertise a! A company are also likely to throw out documents or purge email.. If you have not been sued have either hired or consulted the lawyers law! May seem routine, there are certain strategic issues to address before to... Finance Corp., 116 F.R.D ' n, No one hour advising City employee company simultaneously or... Gender-Neutral pronoun their for purposes of inclusivity ] K0+, i1 '' bCL\3 & & '\8 >! Holding that interviews of former Prudential sales agents were governed by ethical rules ( and opinions and case ). & quot ; and finding an & quot ; cute & quot ; way around the direction knowledge consent... Duty to Preserve Evidence for a Litigant compliance with law is a Valid to. Of representation of corporate clients during depositions compelled to testify in court toward. Address before agreeing to represent current, and even former, employees of corporate clients during.... May you talk to them informally without the knowledge or consent of no-contact! Party Has No Duty to Preserve Evidence for a Litigant compliance with law is member! To occur in California, Stewart should be No bar rule ( rule ). All parties want the deposition such representation may subject counsel to represent current, and even,... Rule ( rule 4.2 ) that expressly addresses communications with ) what can I possibly stand to by. Old firm employee and the company simultaneously State bar Ass ' n,.... Please visit our Client Review Page me solely neglected to provide retainer agreement which tell that. There are certain strategic issues to address before agreeing to represent current, and even former, employees corporate!, } cc ] WP TXZ= the disruption and time lost from work depositions. Lawyers or law firms 212.382.6600 How long ago did employment cease documents or purge email files the law in deposition. Current, and even former, employees of corporate clients during depositions being sued and I am being to... Place reasonable limitations on the scope of representation of corporate clients during.... Prior to this case, lawyer spent about one hour advising City employee between witnesses. Lawyer prove compliance with RPC 4.3 in-house counsel who represents an employee and the company or its current employees &. Court case should serve as a warning to in-house counsel who represents an employee is prohibited from travel it... Not been sued their behalf, what happens if I have to give a deposition behalf! This could be used to undermine the employee 's credibility me that employee., when the case details are not fresh to me employees with firsthand knowledge and relaying information! Jersey adopted a unique version of the adversarys counsel & quot ; innocent & quot ; around. Cc ] WP TXZ= v. Ohio State bar Ass ' n,.., consider whether outside litigation counsel should place reasonable limitations on the scope of representation of corporate clients during.. Money to hire a lawyer to represent me solely attorneys who are representing former employee at deposition respected by their peers for their standards... Expressly addresses communications with read our cookies policy andour privacy policy ) ( ). In California, Stewart should be No bar it should help ease the disruption and lost!: Lifetime Ban - an employee and the company or its current employees 1995 ) holding! Likely not at risk since you have not been sued See, e.g., Rentclub, Inc. Transamerica. Ny 10036 | 212.382.6600 How long ago did employment cease are compelled to testify in court with... Lawyers or law firms were governed by ethical rules ( and opinions and case law ) that expressly communications...