There are numerous traps for the unwary in dealing with such witnesses. The deposition may also take place at the court reporter's office if it's more convenient to the parties. 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. The court refused. * * * Footnote: 1 1 And always avoided by deposition. 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. For more information, read our cookies policy andour privacy policy. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. This question breaks down into two separate and equally important inquiries. Contact with former managerial employees was addressed at length in Camden v. Maryland [910 F. Supp. P.P.E., Inc. [986 F. Supp. Aug. 7, 2013). Limiting the scope of the joint representation may narrow the scope of what confidential information is considered material.. 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. 3) Am I entitled to some type of renumeration if I have to give the deposition during work hours? Even in the face of Pacific Life's untimeliness argument, Zarrella has failed to proffer any explanation as to why it waited approximately two months from first learning that Pacific Life's counsel intended to represent its former employees, until after Bishop and Miller's depositions were completed and after the discovery deadline had passed, before filing the instant Motion contending that such representation is unethical. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. R. Civ. Corporate defense lawyers want the attorney-client privilege to (1) protect from disclosure their communications with company employees and (2) prevent adversary counsel from questioning these employees outside of a deposition. 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. The ABAs influential ethics committee soon echoed the Niesig dicta. 3. 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)? 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 . The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. Reach out early to former-employees who may become potential witnesses. That deposition notice must set forth the areas of inquiry with enough specificity so the other party can reasonably designate and prepare the appropriate person (s) to testify. No wonder a Temple law student recently wrote a Comment entitled, A Call for Clarity: Pennsylvania Should Uniformly Allow Ex Parte Contact with Former Employees of a Represented Party Under PRPC 4.2, 73 Temple Law Review 1095 (2000). [Emphasis added.]. Atty. 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. 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. 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. . Having a lawyer be the first to reach out is not always the best option. Co., 2011 U.S. Dist. Accordingly, the opinion states that "a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's . But the court denied the motion, declining to read the lawyers admission status so narrowly. Although the court made no decision on . Proc. Such 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. 38, 41 (D.Conn. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. 66 0 obj <>stream Communications between the Company and its former employees may not be protected by the attorney-client privilege (see point 5). For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. Only after consulting with his company's in-house counsel did O'Sullivan choose to have attorney Arana represent him at his deposition. Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. (See point 8.). Lawyers from our extensive network are ready to answer your question. In fact, deposition testimony can also be used in court at trial. . Every good trial lawyer knows that the right witness can make or break your case. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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." deciding whether lawyers' communications with a client's former employees should be protected by the attorney-client privilege. 2) Do I have to give a deposition, when the case details are not fresh to me? In any event, the question still remains whether you can represent the former employer and former employee, so that conversations with that former employee are privileged. California's Rule 5-310 limits the reasonable compensation for expenses and lost time relating to "attending or testifying," although this has also been interpreted to include time spent preparing counsel. %PDF-1.6 % 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. It is therefore important to establish contact (and hopefully a rapport) before your adversary does. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. Reach out early to former-employees who may become potential witnesses. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 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. 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. 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. 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. Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), among bar ethics committees nationwide, the clear consensus is that former managers and other former employees are not within the scope of the rule against ex parte contacts.] In most states, therefore, parties who want protection for their former employees will have to look beyond the no-contact rule. .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 . Providing for two lawyers (for both the employee and employer) doubles the cost. 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. endstream endobj 69 0 obj <>stream After Redmond left the university on unfriendly terms, he met with the plaintiffs lawyer, swore out an affidavit helpful to the plaintiffs case, and gave plaintiffs counsel a document that was clearly marked confidential as between Redmond and the top management of BSU and included specific references to communications with BSUs attorneys. The defendant immediately filed a Motion to Strike the Testimony of Richard Redmond and to Disqualify Plaintiffs Counsel. If the former employee is willing to be represented by Company counsel, or by independent counsel at the Company's expense, then advise the former employee to tell your adversary to contact the former employee's counsel--and to say nothing else. 1116, 1118 (D. Mont. 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. From Zarrella v. Pacific Life Ins. Its five oclock somewhere: Lawyers working remotely from other jurisdictions during COVID-19, Censure serves as reminder that zealous advocacy is no excuse for lack of candor toward tribunal, New York says presumption for sharing confidential information in joint representations does not apply retroactively, Ohio clarifies when out-of-state lawyers are permitted to conduct and defend depositions, Supreme Court Ultimately Declines to Decide Attorney-Client Privilege Case, Impairment considered mitigating factor but insufficient to shield from meaningful sanctions. 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. Note that any compensation for cooperation could be used to undermine the employee's credibility. Give the deposition. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. Finally, Part III offers practical recommendations for lawyers who may want to communicate with a client's former employees in confidence. Toretto advised these individuals that "they were entitled to counsel" and informed them that "Pacific Life could provide such counsel if they preferred that to choosing or finding their own." Our office locations can be viewedhere. Depending on the claims, there can be a personal liability. Explain the case and why you or your adversary may want to speak with the former employee. If you have been served with a subpoena, you are compelled to testify in court. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. v. LaSalle Bank Nat'l Ass'n, No. Distinguished: An excellent rating for a lawyer with some experience. Assessing the likelihood of disclosure would depend upon weighing such factors as: the positions of the former employees in relation to the issues in the suit;, whether they were privy to communications between the former employer and its counsel concerning the subject matter of the litigation, or otherwise;, the nature of the inquiry by opposing counsel; and, how much time had elapsed between the end of the employment relationship and the questioning by opposing counsel.. 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. The subject matter test applies attorney-client privilege to communications between a corporate counsel and employee if managers direct the employee to communicate on matters involving performance of duties. . 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. 956 (D. Md. Retaining counsel for the former employee also enables the Company's counsel to discuss the case with the former employee's counsel without risking disclosing privileged information to a testifying witness. In doing so, it discusses the leading case supporting each approach. 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 . former employee were privileged. During the deposition, a court reporter takes notes of the proceeding. 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. Prior to this case, Lawyer spent about one hour advising City Employee . In instances where information simply cannot be obtained by any reasonable source, a corporation, like an individual deponent . An adversarys former employees are often the most valuable witnesses in litigation. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). You are more than likely not at risk since you have not been sued. If the witness desires representation, they should then be provided with outside litigation counsels contact information. 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 LEXIS 108229 (S.D. Improper selection and preparation of a corporate 30 (b) (6) witness can result in adverse reactions and a severe negative impact on your case. The Client Review Rating score is determined through the aggregation of validated responses. representing former employee at deposition. 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. 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