Whether to represent a former employee during the deposition. The purpose of a deposition is to obtain answers to the attorney's questions, from a witness, who is sworn in, under oath. Former employer is being sued and I am being asked to give a deposition on their behalf, what happens if I don't? 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. 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. Having a lawyer be the first to reach out is not always the best option. . 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." 1996).]. This site uses cookies to store information on your computer. Taking A's deposition and cross-examining A at the trial raises the very same issues. . By in-house counsel, for in-house counsel. Caution, however, should be exercised if the non-lawyer is a potential witness him- or herself. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. Depending on the claims, there can be a personal liability. 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. of this site is subject to additional The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. Communications between the Company's counsel and former employees may not be privileged. For more information on Martindale-Hubbell Client Review Ratings, please visit our Client Review Page. 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. Fla. 1992); Porter v. Arco Metals Co., 642 F.Supp. 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. 956 (D. Md. Toretto Dec. at 4 (DE 139-1). 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. 9"(=!5}'gHRs2%GH/XadHGxt^(_%|OtMD>)o8-o Va. 1998)]. Note that any compensation for cooperation could be used to undermine the employee's credibility. No one wants to be drawn into litigation. hZn7@_ @6@5[huy5Xh4HQEz lMOYPtRST>lbnnjovomJo a@s ?o~6/+f3q)D>+kr1~9Zfv5UtQyhTT#(&)$j_46.#c,t}D@dX.ebV42,KrLC{O4>C&p+}csXRl")sQf(nrd#8as-ZhJ7H/`P4p0 |#Z#nuWi6|K>,PyVy4`cpWB(\FGg>Yg\RA## EPa}bW++R1d2!testqzI=cyx}A.4 *s#lX*"]B4Wzv#bY7XWSbeT+# 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. Reviewers can be anyone who consults or hires a lawyer including in-house counsel, corporate executives, small business owners, and private individuals. 1115, 1122 (D. Md. Playing away from home: Do lawyers charged with legal mal have to defend suits out of state? This is abroad standard. 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. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. 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 . [2]. "It is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 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. R. Civ. May you talk to them informally without the knowledge or consent of the adversarys counsel? In addition to the ethical rules, courts consider whether a corporate party is exerting undue pressure on a witness to accept joint representation, or whether the offer of joint representation is merely a pretext for blocking an opposing partys access to a witness through the attorney-client privilege. (See points 8 & 9). Pennsylvanias federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. Mai 2022 . These calls can be difficult. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. 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. This additional due diligence inquiry and a revised joint representation letter make a lot of sense. All reviewers are verified as attorneys through Martindale-Hubbells extensive attorney database. 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. 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. hT0ESfK6+ @BJlRiWG{s!zp(blu)_m;U-m>".76^9-'`@* MZAK;?yOgXXwZ_oJ Our office locations can be viewedhere. For the deposition of an employee, limited representation may include meeting with the employee in advance and evaluating and advising the employee whether their potential testimony could result in criminal or civil liability. Your access of/to and use 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. 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. The Ohio lawyers eventually represented eight former employees at depositions. [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. Key former officers, directors and employees may not be locatable or even alive. In doing so, it discusses the leading case supporting each approach. Prior to that time, there is no assurance that information you send us will be maintained as confidential. Is there any possibility that the former employee may become a party? 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. 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. [Emphasis added.]. Okla. April 19, 2010). . Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. . Id. 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. Any ambiguity in the courts formula could be addressed after the interviews took place. Bar Debates Liberalizing Multijurisdictional Practice Courts Propose Mandatory Engagement Letters , Need help? In fact, Plaintiffs counsel in this case has informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon Medshares through the statements, actions or omissions of these former employees. What this means is that notes, correspondence, think pieces, 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. City Employee will be a witness. #."bs a One of the first questions a former employee will ask is whether they should retain a lawyer. 2005-2023 K&L Gates LLP. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. The short answer is "yes," but with several caveats. These resources are not intended as a definitive statement on the subject addressed. 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. Consider whether a lawyer should listen in on this initial call. Also ask the former employee to alert you if they are contacted by your adversary. Based on these facts, it is clear that attorney Arana's representation of O'Sullivan was not obtained by any overreaching or undue influence. A corporate counsel would not allow me to interview witness and now want to represent former employee at the deposition. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 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. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. 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. 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