Okla. April 19, 2010). Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. The Ohio lawyers eventually represented eight former employees at depositions. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. 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. Enter the password that accompanies your username. 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. He also disqualified the law firm . 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.". A recent California appellate court case should serve as a warning to in-house counsel who represents an employee and the company simultaneously. Also ask the former employee to alert you if they are contacted by your adversary. ,((+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 2005-2023 K&L Gates LLP. 1996).]. Whether to represent a former employee during the deposition. A case addressing both categories is Armsey v. Medshares Management Services, Inc. [184 F.R.D. 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. Lawyer represents Plaintiff. Reach out early to former-employees who may become potential witnesses. 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 . 651, 658 (M.D. 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. Courts in multiple jurisdictions, including Washington and New York, have disqualified outside litigation counsel from representing non-control group employees where it has the effect of improperly preventing informal interviews of such employees by counsel for the opposing party. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. Wells Fargo Bank, N.A. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." 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. In doing so, it discusses the leading case supporting each approach. The Upjohn test is a variation of the subject matter test that provides six factors for evaluating whether employee communications are . The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. Counsel may need to be involved in this process. * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. 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. listings on the site are paid attorney advertisements. Courts understand. U.S. Complex Commercial Litigation and Disputes Alert. Our office locations can be viewedhere. 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. Co., 2011 U.S. Dist. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. . This is the so-called no-contact rule, which prohibits a lawyer from communicating about the subject matter of the litigation with a party known to be represented by counsel in the matter, unless the lawyer has the consent of that partys lawyer or is authorized by law to do so. The court refused. at 7. 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." Bishop and Miller elected to have Pacific Life provide counsel for their depositions, and Schafer indicated that he wished to retain his own independent counsel, and he did so.***. 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. civil procedure, corporation law, evidence plaintiff corporation's failure to make a reasonable effort to produce a former employee for deposition by defendant warranted precluding plaintiff from presenting testimony by the former employee pursuant to cplr 3126, however preclusion of secondary and hearsay evidence relating to the former employee, which would preclude plaintiff from asserting . You should treat everyone . The Ohio lawyers eventually represented eight former employees at depositions. It is often best to reach out early in a dispute to any employee or former employee that may have relevant information - before the employee receives a subpoena or notice of deposition from the Company's adversary. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. The plaintiffs lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. 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. 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." 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. Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. 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. 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. 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). Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? . The Client Review Rating score is determined through the aggregation of validated responses. They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction. %PDF-1.6 % Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. Former employees whose exposure has been less than extensive would still be available for ex parte interviews. 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. Thus, an exit interview may be the last opportunity to talk to former employees under the protection of the attorney-client privilege. 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." As to any communication between defendant's counsel and a former employee whom counsel does not represent, which bear on or otherwise potentially affect the witness's testimony, consciously or unconsciously, no attorney-client privilege applies. 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. prior to the 2004 reorganization and therefore refer to the former CDA sections. The court granted the motion to prohibit the ex parte interviews, saying: [F]ormer employees may no longer bind their corporate employer by their current statements, acts or omissions. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. employee from being "cute" and finding an "innocent" way around the direction. 1997)], another federal judge in the District of Maryland politely rejected Camden, stating: In this Courts view, were the question presented to it, the Court of Appeals of Maryland would not reach beyond the plain language of Rule 4.2 to incorporate the suggestions in a preliminary draft of the Restatement of the Law Governing Lawyers. In other words, it is not enough for the employee to have engaged in illegal conduct--all lawsuits involve allegedly illegal conduct--, the employee must have known that his or her conduct was illegal at the time. 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