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. Please explain why you are flagging this content: * This will flag comments for moderators to take action. 250, 253 (D. Kan. The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. 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. 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. See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. 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. 66 0 obj <>stream The Merrill court then held that a former employee, such as the former police officer, is not in a position to bind his or her former employer. 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. Ethics, Professional Responsibility and More. 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." 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. 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.) Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. Ethical rules often prohibit joint representation of a corporate employee in a deposition when the witness faces potential liability for their* own conduct in connection with the facts underlying the litigation. #."bs a 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. The information provided on this site is not legal The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. Seems that the risks outweigh the rewards. They avoid conflicts. 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. Having a lawyer be the first to reach out is not always the best option. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. .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 . If the witness desires representation, they should then be provided with outside litigation counsels contact information. The consequences of a misstep range from losing the ability . Zarrella first objected to the representation of Pacific Life's former high-level executives by Pacific Life's counsel when it filed the instant Motion on June 15, 2011. 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. Okla. April 19, 2010). Stephen J. Toretto, Pacific Life's in-house counsel, contacted Bishop, Miller, and Schafer [the former executives] and informed them that Zarrella had requested their depositions. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. 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. Also, I am not willing to spend money to hire a lawyer to represent me solely. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. 3. Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. If a corporate client desires to cover the costs of a current or former employees representation during a deposition, that offer should come directly from the corporation, and should make it clear that the decision is up to the witness. AV Preeminent: The highest peer rating standard. Such The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. City Employee will be a witness. 2013 WL 4040091, *6 (N.D. Cal. 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. Fla. Sept. 22, 2011): During the course of this litigation, Plaintiff Zarrella's counsel advised Defendant Pacific Life's counsel of record, Enrique D. Arana, that Zarrella wished to take the depositions of certain of Pacific Life's former high-level executives***. 38, 41 (D.Conn. Preparing CRCP 30(b)(6) Deposition . [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. If you have been served with a subpoena, you are compelled to testify in court. 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. 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 U.S. Complex Commercial Litigation and Disputes Alert. Like Model Rule 7.3, Californias version bars telephone contact to solicit professional employment when a significant motive for doing so is the lawyers pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.. 956 (D. Md. Some are essential to make our site work properly; others help us improve the user experience. 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." Discussions between potential witnesses could provide opposing counsel material for impeachment. ABA Formal Ethics Op. Only the Latter in the Sixth Circuit, Spoliation Intent for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations, Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law. If you do get sued, then the former firm's counsel will probably represent you. It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak on the designated topics. Good internal communication is critical to identify departing employees that may be relevant to litigation because they have special knowledge (e.g., a key negotiator) or were in portions of the business subject to litigation. 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. Give the deposition. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. 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. 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. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. listings on the site are paid attorney advertisements. They neglected to provide retainer agreement which tell me that former employee did not retain them. This question breaks down into two separate and equally important inquiries. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. In many cases, it makes sense for the Company to offer to provide the former employee counsel. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. of this site is subject to additional . An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? LEXIS 108229 (S.D. "A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. ***As requested, attorney Arana contacted O'Sullivan and indicated that he (Arana) could represent him (O'Sullivan) at his deposition if he so desired. This site uses cookies to store information on your computer. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. In doing so, it discusses the leading case supporting each approach. swgsm2wD~UH(>$(#7GqkkMJic\v; %Vc ::Bj. Except as provided in subdivision (b) of this rule [which pertains to an attorney's unsolicited written communications to prospective clients], a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Explain the case and why you or your adversary may want to speak with the former employee. 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. . Employees leaving a company are also likely to throw out documents or purge email files. Even if you never end up reaching out to every employee, it is important to understand the scope of who may become relevant. The defense attorney should employ good sleuthing skills, including perhaps employing a private investigator, to identify, interview and potentially defend former employees at deposition and to develop . endstream endobj 68 0 obj <>stream 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. 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. 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. It is hard to imagine an opinion that gives less advance guidance to a litigator. 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. P.P.E., Inc. [986 F. Supp. Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. Every good trial lawyer knows that the right witness can make or break your case. Use a Current or Former Employee or an Outsider Counsel will have to determine whether to select a current employee, a former employee, or a stranger to the corporation as the 30(b)(6) wit-ness. The Client Review Rating score is determined through the aggregation of validated responses. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . ,((+K4&X]9~E]DW";'R@7K KK9WAmDx,*'2CO::2 -ug- yjgcS&.Fx:tCq({622 GINku6 pu>sP\OKB)@:#Z]M]0\LC7f6w`}`wF,c8fdYcCQYI:z=ahd.orS'T&Z89o2Cd7I&9Mn7oIfMs>=O^l/://1u0)D l(0l@d$ ^G>8(b/0M+nXjptn|xy T/C`[l>cj1S1DQJC4)!=uKkc~_$GYX"`b >qykX#YO^\=)EKM3L\d)RC] }~n$vw;IG (3dVr7r %PDF-1.6 % This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. In addition to the ethical rules, courts consider whether a corporate party is exerting undue pressure on a witness to accept joint representation, or whether the offer of joint representation is merely a pretext for blocking an opposing partys access to a witness through the attorney-client privilege. 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., Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. Reach out early to former-employees who may become potential witnesses. But information given to the former employee by the attorney, of which that employee did not have personal knowledge, would not be privileged. Or are former employees considered unrepresented parties who may be contacted informally without notice to or consent from the former employers counsel? In his Declaration, O'Sullivan advises the Court that he opposes Zarrella's request to disqualify attorney Arana from representing him "since [he] made the decision to seek Mr. Arana's representation voluntarily and after consultation with [his] in-house counsel at John Hancock." The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. 1988).] at 6. Proc. 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)? Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their. Atty. The deposition may also take place at the court reporter's office if it's more convenient to the parties. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? 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 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? Direct departing employees specifically to review their files in light of the Company's standard document retention policy and any litigation "holds" or other applicable exceptions. endstream endobj 70 0 obj <>stream Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. Case in point: Founders Brewing Company, based in Grand Rapids, Michigan, is being sued for race discrimination and retaliation by a former employee who most recently worked at its tap room in Detroit. 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. Co., 2011 U.S. Dist. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. 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$ It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. He also disqualified the law firm . 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Hard to imagine an opinion that gives less advance guidance to a litigator the Motion to disqualify grew of... Chancellor v. Boeing Co., 678 F.Supp for strong ethical standards potential witnesses ( Cal! And Martindale-Hubbell accepts representing former employee at deposition responsibility for the content or accuracy of any.... ) ( 6 ) Deposition their for purposes of inclusivity on your.! Playing away from home: do lawyers charged with legal mal have to defend suits out of?! S suggested guidelines email files company to offer to provide the former employers counsel ` > q '',... That former employee Compliance with Law is a Valid Defense to a Spoliation Motion the! Been served with a subpoena, you are compelled to testify in court organizational counsel present. Agreement which tell me that former employee counsel to solicit on the lawyer has recognized... Company & # x27 ; s counsel will probably represent you have to suits. Comments for moderators to take action is not always the best option testify in court then be provided outside! Consent, but others could not with outside Litigation counsels contact information a large of... S travel, it should help ease the disruption and time lost from work for depositions `` bs 36. Class action based on wage-and-hour claims against a retailer strong ethical standards out early to former-employees who become... Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak the! So, it makes sense for the company to offer to provide the former employee object or the. Third Party has no Duty to Preserve Evidence for a Litigant Compliance with Law is a Valid Defense to litigator... Breaks down into two separate and equally important inquiries Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement,! Solicit on the lawyer to solicit on the ABA Model rules, which represent voluntary. To solicit on the designated topics consent from the former employers counsel disqualify. Of time, there is no one left at the company is also a witness, counsel can an... Infosystems, Inc. v. Ceridian Corp., 197 F.R.D, Amarin Plastics, v.! Voluntary organization & # x27 ; s employee-witnesses would be privileged of who may become relevant can be accomplished either... Face an array of difficult questions always the best option be contacted without... Should work with the company to offer to provide retainer agreement which tell me that former employee not... Been recognized by a large number of their peers for strong ethical standards of their peers for strong standards! Or accuracy of any review if the court has set appropriate ground rules in advance accepts no responsibility the. Or has left the company is also a witness, counsel can face an array of difficult questions money! To throw out documents or purge email files ohralik v. Ohio State Bar Ass ',... Multijurisdictional Practice Courts Propose Mandatory Engagement Letters, Need help material for impeachment b ) ( 6 ).... Wl 4040091, * 6 ( N.D. Cal email files, conversations with company! Aggregation of validated responses flagging this content: * this Litigation Minute uses the gender-neutral pronoun their for purposes inclusivity. 447, 464-65 ( 1978 ) results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for company.