Enter your Association of Corporate Counsel username. What this means is that notes, correspondence, think pieces, While it may be possible to waive such conflicts, it increases the risk that outside litigation counsel will be disqualified from representing the employee in their deposition. 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. Toretto Dec. at 4 (DE 139-1). Property management companies should work with the attorneys representing the HOA to prepare one or more witnesses to speak on the designated topics. (See point 8.). 4) What can I possibly stand to gain by giving my deposition on behalf of my old firm? Zarrella, however, did not then 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 Bishop. 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? 148 (D.N.J. 250, 253 (D. Kan. From Zarrella v. Pacific Life Ins. Importantly, if an employee is no longer with the company, the usual prohibition of opposing counsel contacting a party's employee may not apply. He also disqualified the law firm . Thankfully, the California Law Revision Commission compiled a disposition table showing each former 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. 66 0 obj <>stream . The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1). Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. 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. Opposing counsel wants to depose the company's "person most knowledgeable" regarding the negotiation of the contract. Martindale-Hubbell Peer Review Ratings are the gold standard in attorney ratings, and have been for more than a century. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. 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. .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 . In this Courts opinion, the enforcement of such novel strictures and interpretations as may be found in that draft should be made by a duly promulgated amendment to the rule itself, rather than by the gloss of case law. Moreover, O'Sullivan made his decision as to Pacific Life's counsel's representation only after he obtained the advice of an independent attorney. 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 There are numerous traps for the unwary in dealing with such witnesses. 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. 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.) 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. The Court found that Niesig only restricted contact by counsel with employees of a represented party who are in a position to bind that party. Communications between the Company's counsel and former employees may not be privileged. Consider whether a lawyer should listen in on this initial call. advice, does not constitute a lawyer referral service, and no attorney-client or Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). 1995), holding that interviews of former Prudential sales agents were governed by New Jerseys version of the no-contact rule.] 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. 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 . 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***. Karen is a member of Thompson Hines business litigation group. 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." How can the lawyer prove compliance with RPC 4.3? Any ambiguity in the courts formula could be addressed after the interviews took place. Such cooperation could include preparing for litigation (such as preparing the Company's Corporate representative under Fed. Where a departing employee is receiving severance payments, and litigation is likely or ongoing, counsel should consider whether to include in the agreement provisions requiring the employee to assist the Company in litigation. Using one lawyer also deters a defendant from potentially entering into another settlement with the plaintiff after their employment ends or the case has been settled. 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. By in-house counsel, for in-house counsel. Some are essential to make our site work properly; others help us improve the user experience. 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. It is likely, however, that unless counsel undertakes to represent a former employee in the former employee's individual capacity, communications made in the course of deposition preparation would also fall outside the scope of corporate attorney-client privilege, under Newman. Moreover, former employees are often "former" for a reason. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45." Karakis v. Foreva Jens Inc., endobj 39 0 obj >/Filter/FlateDecode/ID[36CE18A8C1A8084D921A73E68A65DB61>]/Index[34 7]/Info 33 0 R/Length 36/Prev 11576765/Root 35 0 R/Size 41/Type/XRef/W[1 2 0 . Avoiding problems starts before employees become "former." Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. This site uses cookies to store information on your computer. Mai 2022 . But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four . 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. Atty. %PDF-1.6 % Leverage the vast knowledge and experience of your global in-house peers, Connect with hundreds of in-house counsel all over the world, Find your next career opportunity and be prepared for the interview, Learn more about ACCs Seat at the Table initiative, Use this Model to Gauge the Maturity of Your Department's DE&I Functions, Need Help? at 6. These and other questions vary with circumstances and the risk/benefit analysis must ultimately be left to the judgment of the lawyer. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversarys former employees, and asked the court to preclude plaintiff from using at trial any statement, information or evidence, or the fruit thereof received as a result of the ex parte communications with defendants former employees. Instead, courts may apply the Peralta standard even if the company's lawyer also represents the former employee. 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. v. LaSalle Bank Nat'l Ass'n, No. [See, e.g., Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 38, 41 (D.Conn. 5. Also ask the former employee to alert you if they are contacted by your adversary. And have been for more than a century who are not paid for testimony... Counsel 's representation only after he obtained the advice of an independent attorney may the! Consider whether a lawyer should listen in on this initial call courts may the! Apply the Peralta standard even if the Company 's Corporate representative under Fed counsel fall... 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