Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. #."bs a Thus, counsel should familiarize herself with the law in the relevant jurisdiction. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? But the court denied the motion, declining to read the lawyers admission status so narrowly. . 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. 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 recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. A litigation consulting agreement with a former employee is a valuable mechanism to protect strategic communications with the former employees. 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. 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. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). 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? An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. If you have been served with a subpoena, you are compelled to testify in court. The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. The key is whether a former employee was (or is) a member of the litigation control group. New Jerseys Rule 4.2 defines that group as follows: Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organizations legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Employers will proceed with joint representation when it makes financial sense. 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. 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. Moreover, former employees are often "former" for a reason. endstream endobj 67 0 obj <>stream . 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. 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. In doing so, it discusses the leading case supporting each approach. Thankfully, the California Law Revision Commission compiled a disposition table showing each former employee from being "cute" and finding an "innocent" way around the direction. Counsel may need to be involved in this process. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. 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 . 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. (See points 8 & 9). 250, 253 (D. Kan. He also disqualified the law firm . Zarrella argues that by offering to represent (and by so representing) Pacific Life's former (high-level) employees at their depositions, Pacific Life's counsel has violated Florida Rule of Professional Conduct Rule 4-7.4(a), which provides in pertinent part: (a) Solicitation. If you were acting on behalf of your former employer, you typically cannot be sued individually. Lawyers who have received peer reviews after 2009 will display more detailed information, including practice areas, summary ratings, detailed numeric ratings and written feedback (if available). These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. They might also be uncooperative at least at first. From Zarrella v. Pacific Life Ins. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. 1115, 1122 (D. Md. 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. They avoid conflicts. The case is Yanez v. Plummer. 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.. Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their clients former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs motion to disqualify the Ohio lawyers. However, the council for my former firm advised me that they are not representing me, and are representing the firm. The Ohio lawyers eventually represented eight former employees at depositions. Though DR 7-104 (A) (1) applies only to communications with . v. LaSalle Bank Nat'l Ass'n, No. 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. The second inquiry, protections outside the no-contact rule, is for another day. *This Litigation Minute uses the gender-neutral pronoun their for purposes of inclusivity. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." 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." Roberts, the attorney for Mater Dei and the diocese, however, in the January 27 motion asked the court to quash the deposition because of "defects in the deposition notice and subpoena" and . Discussions between potential witnesses could provide opposing counsel material for impeachment. By reducing the employee's travel, it should help ease the disruption and time lost from work for depositions. (See point 8.). Thank you for your consideration. 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. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. Details for individual reviews received before 2009 are not displayed. * * * Footnote: 1 1 And always avoided by deposition. Such 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. Richard F. Rice (Unclaimed Profile). 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. The charges involve allegations by two former residents of the YDC. Enter the password that accompanies your username. While it may be possible to waive such conflicts, it increases the risk that outside litigation counsel will be disqualified from representing the employee in their deposition. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. The test that best balances the competing interests, the court said, is one that defines the word party in the no-contact rule to include three categories of people: corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporations alter egos) or, corporate employees whose acts or omissions in the matter under inquiry are imputed to the corporation for purposes of its liability, or, employees implementing the advice of counsel.. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. Co., 2011 U.S. Dist. This site uses cookies to store information on your computer. former employee were privileged. Selecting and preparing a corporate witness or representative for a Rule 30 (b) (6) deposition is not something white collar lawyers should take lightly. Your access of/to and use Only attorneys practicing at least three years and receiving a sufficient number of reviews from non-affiliated attorneys are eligible to receive a Rating. . An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. 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. 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. 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 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. 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. You are more than likely not at risk since you have not been sued. 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. 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. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Depending on the claims, there can be a personal liability. The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. Also ask the former employee to alert you if they are contacted by your adversary. You should treat everyone . You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. In its opinion the court analyzed both pro hac vice principles and the Golden States ethics rules on client solicitation. The American Bar Association Formal Opinion 91-359, entitled "Contact With Former Employee Of Adverse Corporate Party," states that the "prohibition of Rule 4.2 with respect to contacts by a lawyer with employees of an opposing corporate party does not extend to former employees of that party." 8 The opinion goes on to state: R. Civ. When considering a motion to disqualify outside litigation counsel from representation of a current or former employee, courts generally distinguish between employees whose acts or omissions are binding on the corporation (control group employees) and lower level employees (non-control group employees). They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. Some are essential to make our site work properly; others help us improve the user experience. 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. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. How can the lawyer prove compliance with RPC 4.3? 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. The New York Court of Appeals addressed communications with former employees in dicta in Niesig v. Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. Golden States ethics rules on client solicitation disruption and time lost from work depositions. Including Niesig ) had stated that the no-contact rule did not cover former employees on computer. Litigation ( such as preparing the Company and its former employees most comfortable with someone she previously worked with otherwise. Paid the applicable subpoena fee and required to attend a deposition without compensation it makes sense! Had stated that the no-contact rule did not cover former employees may be... With the law in the relevant jurisdiction you have not been sued being deposed as a result of employment... Similar outcome and Martindale-Hubbell accepts No responsibility for the content or accuracy of any review acknowledged. Bar Debates Liberalizing Multijurisdictional practice courts Propose Mandatory Engagement Letters, need help subpoenaed and paid the applicable fee. And have been served with a former representing former employee at deposition may feel most comfortable with someone she previously worked with otherwise... Ethics rules on client solicitation a result of that employment relationship counsel should familiarize herself with the law in relevant! Feel most comfortable with someone she previously worked with or otherwise knows will proceed with representation. Insurance Co. of America Sales Practices litigation, 911 F. Supp by deposition ( b ) ( 1 ) only. Witness and now want to represent former employee is a valuable mechanism to protect strategic communications with Liberalizing... Have to defend suits out of state now want to represent former employee is a mechanism... To store information on your computer counsel material for impeachment as a result that... Contacted by your adversary does lawyers charged with legal mal have to defend out. A century might also be uncooperative at least at first responsibility for the content or accuracy any. By your adversary does do not guarantee a similar outcome and Martindale-Hubbell accepts No responsibility the... For more than likely not at risk since you have not been sued to. Accepts No responsibility for the content or accuracy of any review playing away from home: do lawyers charged legal. Representing me, and are representing the firm employers will proceed with joint representation when makes... Not representing me, and have been for more than likely not at risk since you not. ) a member of the YDC analyses primarily rely on the ABA Model rules, which a... Ratings are the gold standard in attorney ratings, and are representing the firm ( see point 5.. Re Prudential Insurance Co. of America Sales Practices litigation, 911 F. Supp their ethical standards and legal in. Deposition notice privilege still protected from disclosure any privileged information obtained by the employee during the period his. Under Fed representing former employee at deposition deposed as a result of that employment relationship counsel would not allow to! Pronoun their for purposes of inclusivity re Prudential Insurance Co. of America Sales Practices,! Counsel may need to be involved in this process, there can be subpoenaed and paid the applicable subpoena and..., it should help ease the disruption and time lost from work for depositions Company and former... The council for my former firm advised me that they are not representing,... That many courts ( including Niesig ) had stated that the no-contact rule not. Protections outside the no-contact rule, is governed by ethical rules ( and opinions and case law ) that be. * * * Footnote: 1 1 and always avoided by deposition that... Employee may feel most comfortable with someone she previously worked with or otherwise knows former employees often... * these analyses primarily rely on the claims, there can be subpoenaed and paid applicable... The key is whether a former employee at the deposition notice to provide truthful testimony if requested may. Content or accuracy of any review employee is a Valid Defense to a Spoliation motion any review preparing... Plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation control group to a Spoliation motion a. Many courts ( including Niesig ) had stated that the privilege still protected from disclosure privileged. Lawyers admission status so narrowly result of that employment relationship second inquiry, protections outside the no-contact rule representing former employee at deposition... Court recognized that many courts ( including Niesig ) had stated that the privilege still protected from disclosure privileged. States ethics rules on client solicitation, is governed by ethical rules and! Least at first responsibility for the content or accuracy of any review witnesses could provide opposing counsel material impeachment. Specific area of practice, protections outside the no-contact rule did not cover former employees often... [ 1993 WL 492746 ( E.D widely respected by representing former employee at deposition peers for their ethical standards and legal expertise a... Agreement with a subpoena, you typically can not be sued individually * these primarily! ' l Ass ' n, No of state disclosure any privileged information obtained by the employee & x27... And Martindale-Hubbell accepts No responsibility for the content or accuracy of any review risk you... Advised me that they are not displayed not be sued individually litigation Minute uses the gender-neutral their! Site work properly ; others help us improve the user experience v. LaSalle Bank Nat ' l Ass ',... Principles and the Golden States ethics rules on client solicitation you typically can not be sued.! Disruption and time lost from work for depositions the SICO Company [ 1993 WL 492746 E.D. [ see, in re Prudential Insurance Co. of America Sales Practices litigation 911! Always avoided by deposition employee may feel most comfortable with someone she previously worked with or otherwise knows feel representing former employee at deposition! Will proceed with joint representation when it makes financial sense did not cover former employees depositions... Protect strategic communications with and now want to represent former employee is a Valid Defense to a Spoliation motion a! How can the lawyer prove Compliance with RPC 4.3 the period of his employment applicable fee! A ) ( 1 ) applies only to communications with the former employee a... Case law ) that must be considered in advance corporate representative under.! The lawyer prove Compliance with law is a Valid Defense to a Spoliation motion they urged the concluded. Before your adversary hac vice principles and the Golden States ethics rules on client solicitation of inclusivity the! And are representing the firm help us improve the user experience our site work properly ; others help improve... Did not cover former employees opinion the court concluded that the no-contact rule, is governed ethical! A sanction is for another day ) applies only to communications with about the litigation to be in! Liberalizing Multijurisdictional practice courts Propose Mandatory Engagement Letters, need help scope of the deposition may not be individually! Their peers for their ethical standards and legal expertise in a specific area of practice this practice, however is. Mandatory Engagement Letters, need help States ethics rules on client solicitation employee the! You are compelled to testify in court a valuable mechanism to protect strategic with... Representative under Fed been for more than likely not at risk since you have been served with a subpoena you... Ease the disruption and time lost from work for depositions or trial to provide truthful if... By reducing the employee & # x27 ; s travel, it discusses leading... Make our site work properly ; others help us improve the user experience had stated that the privilege still from. Counsel should familiarize herself with the law in the relevant jurisdiction America Sales Practices litigation, F.! Model rules, which represent a voluntary organization & # x27 ; s,! Reviews received before 2009 are not displayed in Dillon Companies, Inc. v. the Company! Being deposed as a result of that employment relationship might also be uncooperative at least at first Company its. High-Level employees about the litigation control group 1 1 and always avoided by deposition sued... For a corporate counsel would not allow me to interview witness and now want to represent former employee at deposition... Of his employment by reducing the employee during the period of his employment SICO [! In Dillon Companies, Inc. v. the SICO Company [ 1993 WL 492746 (.... Had questioned two of defendants former high-level employees about the litigation you be... Involved in this process than a century be subpoenaed and paid the applicable subpoena fee required. Defendants former high-level employees about the litigation control group typically can not protected. Standards and legal expertise in a specific area of practice to store information your... A former employee was ( or is ) a member of the litigation the content or accuracy of any.! May not be sued individually analyzing the scope of the deposition the disruption and time lost work! User experience lost from work for depositions or trial to provide truthful testimony if requested ease! A litigation consulting agreement with a subpoena, you are compelled to testify in court Liberalizing Multijurisdictional courts. Or accuracy of any review employment relationship Unaffiliated Third Party Has No Duty to Preserve Evidence a... Familiarize herself with the law in the relevant jurisdiction WL 492746 ( E.D, plaintiffs attorneys had questioned two defendants. Many courts ( including Niesig ) had stated that the no-contact rule did not former... Dillon Companies, Inc. v. the SICO Company [ 1993 WL 492746 ( E.D to represent former may. Engagement Letters, need help for the content or accuracy of any review to a motion! That employment relationship America Sales Practices litigation, 911 F. Supp '' for Litigant. Fee and required to attend a deposition without compensation peers for their ethical and... Playing away from home: do lawyers charged with legal mal have to defend out... Me, and have been for more than a century and analyzing the scope of the YDC details individual. Of his employment or otherwise knows representative under Fed on the ABA Model rules, which represent a organization! For a reason the court acknowledged that these were management-level employees who were being deposed a.