All Rights Reserved. Such . 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. Prior to this case, Lawyer spent about one hour advising City Employee . For example, a current or former employee could be: A participant in the adverse action taken against your cli- ent (e.g., termination, demotion, decrease in pay, or hos-tile work environment) A witness to the adverse action or the emotional distress caused by the adverse action -or- 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. h24T0P04R06W04V05R04Q03W+-()A at 7. Counsel may need to be involved in this process. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? 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. 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. An injured worker sued a contractor for injuries arising out of a construction accident. #."bs a Our office locations can be viewedhere. 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'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." The court concluded that the privilege still protected from disclosure any privileged information obtained by the employee during the period of his employment. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 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. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). Courts understand. Richard F. Rice (Unclaimed Profile). This is abroad standard. The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer. The consequences of a misstep range from losing the ability . In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence. Similarly, in Peralta v. Cendant Corp., 190 F.R.D. Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. Reach out early to former-employees who may become potential witnesses. 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. The court granted the motion. Discussions between potential witnesses could provide opposing counsel material for impeachment. Please explain why you are flagging this content: * This will flag comments for moderators to take action. 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? Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. Other courts have held that, since former employees acts or omissions during the course of their employment may be imputed to the corporation, ex parte communication with former employees of a represented corporate party is prohibited. 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. 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? v. LaSalle Bank Nat'l Ass'n, No. For ease of use, these analyses and citations use the generic term "legal ethics opinion" California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. The contractor argued that all of the employees were off limits under New Yorks no-contact rule, DR 7-104(A)(1), and could be interviewed only with the consent of the contractor s counsel (or in a deposition) because the contractor was represented by counsel. 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$ Normally, as a lawyer representing the defendant-employer, conversations with the company's employee-witnesses would be privileged. Plummer responded that Yanez was a company employee and Plummer was his attorney for the deposition, and as long as Yanez told the truth in the deposition, Yanez's . Aug. 7, 2013). However, the council for my former firm advised me that they are not representing me, and are representing the firm. 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. An early phone call, and if necessary a letter, helps control the message and ensures the employee doesn't receive a nasty surprise. There, the plaintiffs asked the courts permission to conduct ex parte interviews with five former employees of defendant Medshares, including a former in-house counsel, a former Vice-President of Managed Care, and three former non-management employees. Communications between the Company's counsel and former employees may not be privileged. Wells Fargo Bank, N.A. at 6. 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. The Court of Appeals held that some current employees could be interviewed informally without the companys consent, but others could not. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. Mich. 2000), for example, the court declined to extend the attorney-client privilege to a former employee, but noted an exception for communications about subject matter that is "uniquely within the knowledge of the former employee when he worked for the client corporation, such . Former employees whose exposure has been less than extensive would still be available for ex parte interviews. 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. [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. 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. Employee Fired For Deposition Testimony. But, relying heavily on a preliminary draft of the Restatement of the Law Governing Lawyers, the court decided to expand the no-contact rule to cover a person whom the lawyer knows to have been extensively exposed to relevant trade secrets, confidential client information, or similar confidential information of another party interested in the matter. The court explained its reasoning as follows: Where the risk of breaching protected areas is great, prophylactic provision must be made for monitoring. 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. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R 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. U.S. Complex Commercial Litigation and Disputes Alert. ***. 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. P.P.E., Inc. [986 F. Supp. 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 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. But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. Thus, lawyers litigating in Maryland courts will face considerable uncertainty regarding the scope of permitted communications with an adversarys former employees. Moreover, as one district court observed in denying a motion to disqualify the defendant's counsel from representing the defendant's former employees based on an alleged violation of the state anti-solicitation rule, "[s]uch a delay causes the Court to question whether Plaintiff's motion was brought for tactical purposes rather than to address any ethical violations." Short of controlling precedent to the contrary, counsel should assume that communications with former employees are not privileged. Additionally, Zarrella does not dispute that it knew approximately two weeks before Miller's June 1, 2011 deposition that Pacific Life intended to represent Miller at his deposition. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. 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. Consulting Agreement Between Former Employee and Company, Former Employee Payment for Time Spent as Witness. 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. If you fail to honor a lawful subpoena, you could go to jail for contempt of court. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. 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