. 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. Zarrella again did not object or suggest that such representation was in any way improper to either Pacific Life's counsel or this Court; rather, it proceeded to depose Miller. 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. Ethics, Professional Responsibility and More. Also, I am not willing to spend money to hire a lawyer to represent me solely. The court acknowledged that these were management-level employees who were being deposed as a result of that employment relationship. 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. Co., 2011 U.S. Dist. Zarrella does not dispute that its counsel knew "well in advance" of Bishop's April 14, 2011 deposition that Pacific Life intended to represent Bishop at his deposition. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ 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. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. more likely to be able to represent the corporation well. . Whether to represent a former employee during the deposition. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. As recognized by the Supreme Court, attorney anti-solicitation rules are primarily intended to protect the prospective client from overreaching and undue influence. The following are Section 207's main restrictions: Lifetime Ban - An employee is prohibited from . This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. 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. 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. 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." They have since filed a suit against that firm, claiming discrimination on the basis of race, creed, and religion. Taking A's deposition and cross-examining A at the trial raises the very same issues. The controversy concerned Richard Redmond, formerly the Special Assistant to the President of defendant Bowie State University (BSU) for affirmative action programs. . 2) Do I have to give a deposition, when the case details are not fresh to me? The case is Yanez v. Plummer. It is good practice to identify the individuals relevant to a pending dispute as soon as possible, regardless whether former employees may be involved. 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. LEXIS 108229 (S.D. Preparing CRCP 30(b)(6) Deposition . 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. 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***. Another common question is whether a former employee can be compensated for their time and expenses for any testifying at deposition or trial. Va. 1998)]. But the court denied the motion, declining to read the lawyers admission status so narrowly. Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. [Emphasis added.]. h|A@qdY!-: XB.fo5D"1(!Iv8f {E,y*O~j}T &2KLfspp_2{L!DgPJUk?z~OUuk:2% R 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. The following year, in Davidson Supply Co. v. Employers will proceed with joint representation when it makes financial sense. 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 . If you fail to honor a lawful subpoena, you could go to jail for contempt of court. 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. 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 . He also disqualified the law firm . The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. * * * Footnote: 1 1 And always avoided by deposition. 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 . Such The second inquiry, protections outside the no-contact rule, is for another day. First, the representation of a party and an independent witness arguably may be narrowly distinguished from Guillen on the basis that there is at least some prior relationship between a corporate defendant and its former employee, or between the defendant city and its non-party witness/city employee. Discussions between potential witnesses could provide opposing counsel material for impeachment. Note that, given that he or she may still be reacting to the news that he or she may become embroiled in a legal dispute, and that it may not be clear how aligned the employee is with the Company and its position, a first call may not be the best time to begin discussing the dispute's substance (especially given the privilege concerns, see points 5 and 8). From Zarrella v. Pacific Life Ins. Seems that the risks outweigh the rewards. How can the lawyer prove compliance with RPC 4.3? 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. P.P.E., Inc. [986 F. Supp. 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 Although the court made no decision on . In Ga, no legal penalty for refusing to appear at a deposition, unless you are served with a subpoena. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. Supplemental Terms. #."bs a 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." 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. Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys former employees. 6. 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. 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. 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." Id. 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. Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. Is there any possibility that the former employee may become a party? The short answer is "yes," but with several caveats. v. LaSalle Bank Nat'l Ass'n, No. 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. 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. U.S. Complex Commercial Litigation and Disputes Alert. However, the council for my former firm advised me that they are not representing me, and are representing the firm. . They avoid conflicts. But there are limits to the Stewart . Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978). 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. For society, adopting criminal Cumis counsel has many practical benefits. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. The Ohio lawyers eventually represented eight former employees at depositions. Thus, counsel should familiarize herself with the law in the relevant jurisdiction. Thank you for your consideration. These ratings indicate attorneys who are widely respected by their peers for their ethical standards and legal expertise in a specific area of practice. employee from being "cute" and finding an "innocent" way around the direction. 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