can lawyer contact employee when company party to lawsuit

Clearly, an attorney cannot communicate with a person who is in a managerial, leadership, or policy-making position with an organization that the attorney has filed a lawsuit against. Can an attorney, though, contact an unrepresented former employee of an organization that the attorney has filed a lawsuit against?

Full Answer

Can a lawyer contact former employees of a company?

“party”7 for purposes of the no-contact rule.8 To avoid any risk of over-reaching, an attorney contacting a witness who is outside of the control group is generally required to (1) identify him/herself; (2) inform the employee of the controversy at issue; and (3) inform the employee of the reason for the particular inquiry.9 B. Intermediate Views 1.

Can I get a lawyer not connected to the company?

In RO-88-34 (also published in The Alabama Lawyer), the Disciplinary Commission held that a plaintiff’s counsel in a tort claim action could contact and interview current corporate employees/witnesses. There can be no ex parte contact when the employee is an executive officer of the adverse party or could otherwise legally bind the adverse party by his/her …

Can a lawyer communicate with the former employees of an adverse party?

a limited liability company, it is not always clear whether the organization’s “con-stituents,” such as its employees, are deemed to be represented by the organization’s lawyer and thereby off limits to contact by opposing counsel. Similar questions have arisen about how former employees of a represented entity should be treated.

Can I be sued for my workplace injuries?

Jul 20, 2009 · “The plaintiff's attorneys may also contact unrepresented former employees of the opposing party ex parte with the former employee's consent….Because the former employee is no longer part of the corporation and no longer speaks for the corporation, the plaintiff's attorney is not limited by the former employee's role at the defendant corporation….The plaintiff's …

What is a person having a managerial responsibility on behalf of the organization?

persons having a managerial responsibility on behalf of the organization, and … any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Can an employee be an ex parte?

There can be no ex parte contact when the employee is an executive officer of the adverse party or could otherwise legally bind the adverse party by his/her testimony, or if the employee was the actual tort feasor or person whose conduct gave rise to the cause of action.

Does Rule 4.2 apply to former employees?

While Rule 4.2 does not purport by its terms to apply to former employees, courts confronting the issue have interpreted Rule 4.2 (as illuminated by its comment) and DR 7-104 (A) (1) (which does not have such a comment or comparable discussion in any Ethical Consideration) in various ways.

Can a comment to Rule 4.2 survive termination?

Neither the Rule nor its comment purports to deal with former employees of a corporate party. Because an organizational party (as contrasted to an individual party) necessarily acts through others, however, the concerns reflected in the Comment to Rule 4.2 may survive the termination of the employment relationship.

Should a lawyer communicate with a client?

For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person….

Who is the defendant in the sex discrimination suit against the Credit Union?

The credit union President, John Don, has been named as a defendant in both suits. Mr. Don’s former secretary, Amy Honey has retained our firm to represent her in connection with sex discrimination arising out of Mr. Don’s treatment of Mrs. Honey when she became pregnant and took maternity leave.

What did the former executive tell the counsel for the plaintiffs of certain tax deductions?

The former executive told the counsel for the plaintiffs of certain tax deductions that the thrift institution had taken that the plaintiffs were not aware of, and that information constituted the alleged privileged and confidential information.

What is the ABA model rules of professional conduct?

Rule 4.2 of the ABA Model Rules of Professional Conduct instructs us that “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so .” The Comment to Model Rules of Prof’l Conduct R 4.2 further explains that “In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.”

Can an employee engage in ex parte communication with the former Human Relations Manager of the defendant employer?

In an employment discrimination case, another federal court ruled that plaintiff employee’s counsel could engage in ex parte communication with the former Human Relations Manager of defendant employer.

Where was the Florida lawsuit filed?

The litigation was initially filed in state court in Florida and then removed to federal court by the defendants on the basis of diversity of citizenship. After the removal, the plaintiffs sought to file a second amended complaint.

Can an attorney communicate with a former employee?

The court held that “An attorney may ethically communicate with a former officer or employee of a corporation on an ex parte basis even though the attorney knows that the corporation is represented by counsel.”.

What happens if you don't answer questions at a deposition?

If you are called and sworn as a witness to testify at a deposition you have an obligation to truthfully answer questions that do not call for privileged information. You are not required to answer questions that call for the disclosure of privileged communications, such as attorney client, doctor patient, accountant client and, minister parishioner communications. However, if you think you may be asked to disclose such information it would be advisable to tell your new employer's attorney and ask the attorney to object to your providing that kind of information. If you fail to answer questions that are not protected by privilege you could be held in contempt of court and jailed or fined or both. It is a violation of Michigan public policy to terminate an employee for giving truthful testimony under oath. Depending on the kind of case you are being deposed in it may also be a violation of the statute the litigants are proceeding under. For example, if the suit is brought under the civil rights laws, it is a violation of the anti-retaliation provisions of those laws to demote, fire or take away a benefit of employment because you give truthful testimony in a proceeding under the law.

What happens if you are subpeoned to appear at a deposition?

If you are subpeoned to appear at a deposition and placed under oath you must answer truthfully or the penalty is perjury It would be illegal and an act of discrimination in violation of public policy to terminate you for obeying the law and refusing to violate the law . Having said that I would discuss this with your current employer and its lawyer and express your concern and anxiety about the process.

Why would you not have a privilege?

You would not have a privilege simply because you believe your answer is against the interests of your current employer, and you fear that your employer will retaliate against your for answering that question. Your new company will likely have you meet with its attorneys beforehand to prepare you for the deposition.

What happens if a company fires you?

. . that's perjury. If company fires you you'll have a lawsuit against them on "public policy" grounds. They're NOT supposed to punish someone for testifying . . . even if it goes against them. That would be a wrongful termination.

Do you have to answer questions to which no privilege applies?

While you have a privilege in certain cases to decline to answer questions (for instance, the attorney-client privilege, or the Fifth Amendment right against self-incrimination), you must fully and truthfully answer questions to which no privilege applies.

Can you be subpoenaed for a deposition?

Since you are not a party to the lawsuit, they would have to subpoena you for a deposition. If a subpoena is issued for you to attend a deposition, you will have to appear. If your answers would place you in criminal jeopardy, you can always invoke your 5th Amendment rights. Otherwise, you may have to truthfully answer the questions. Prior to your deposition you may wish to speak with an attorney who can assist you in truthfully answering the questions but maybe in a way that will also protect your interests.

Do you have to tell the truth when you are served with a subpoena?

As you will be served with a subpoena and testify under oath, you must tell the truth. If you are afraid of criminal prosecution you should retain a lawyer to attend the deposition with you.

What is a third party lawsuit?

A third-party lawsuit arises when you believe the negligence of someone other than your employer caused the injury in question. Why would it make sense to both file a workers comp claim and sue a third party? It comes down to compensation.

What is Berg's experience in workers comp?

Berg, who has litigated workers comp cases for over 25 years, said in his experience, the most common third-party lawsuits involve vehicular accidents that occur when an employee is on the road and injured by another motorist; he is currently working on a handful that fall into that category. He is also representing a plaintiff in a defect lawsuit involving a chair that collapsed when the employee was sitting on it, causing a broken tailbone.

What happens if your temper flares on the job?

If tempers flare on the job and you are assaulted by someone other than your employer, you can sue that person for any injuries you may have sustained. For example: A high school teacher who is assaulted by the parent of a student angry about the grade their child received.

What damages can a third party claim?

Damages in a third-party lawsuit can include both special, or economic ones, such as lost wages, medical bills and other out-of-pocket expenses, and special, or non-economic damages, such as pain and emotional trauma. By proving that the third party owed you a duty of care and that you were injured as a result of its failure to provide it, ...

What is toxic tort?

Toxic Torts. Toxic torts refer to lawsuits involving the exposure to chemicals or toxins that cause health problems or injuries. Unfortunately, modern society routinely brings workers into contact with a wide range of toxins, from asbestos and lead paint to mold and potent chemicals. If you are injured by exposure to such a toxin ...

Can you sue a third party for a toxin?

If you are injured by exposure to such a toxin that results from the negligence of a third party, you can sue in addition to filing a workers comp claim. For example: A worker in a chemical plant burns his hands when the protective gloves he is wearing tear because of a defect. The worker can sue the manufacturer of the gloves.

Can a truck driver sue the manufacturer for a defective seatbelt?

If a defect in the product causes an injury, the employee may have grounds to sue the product’s manufacturer. For example: A truck driver injured in an accident where the seatbelt fails to function properly because of a defect. The driver can sue the manufacturer of the seatbelt and/or truck.

What is the rule for representing a client?

Rule 4.2 states “ [i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

What is the rule for witnesses who do not have a lawyer?

When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following: – A lawyer shall not state or imply that the lawyer is disinterested.

Can a lawyer ask a witness not to talk to the other side?

With some exceptions, a lawyer ask a witness not to talk to the other side. A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is: (ii) a relative, employee or agent of a client.

Can a lawyer talk to his client before a client testifies?

A lawyer can always talk to his own client before the client testifies. There is, of course, not prohibition against a lawyer talking to his client prior to the client testifying. In fact, that is precisely what the lawyer is supposed to do.

Can a lawyer tell a witness to lie under oath?

A lawyer can never tell a witness to lie under oath. As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.

Is communication allowed with current employees?

Thus, communication with some current employees is also permitted. But, if the other side learns of the communication, the lawyer is going to have to carry the burden of showing that the employee is outside the scope of Rule 4.2.

What happens if you are injured by a third party while working for your employer?

you and your employers will be jointly and severally liable for any intentional act or omission causing injury to a third party in the course of your employment. Even if it was not intentional, if you injured a third party while working for your employers, you and your employers will be joined i.e.

What to do if you are named in a lawsuit?

If you are named personally in the lawsuit, spend the few dollars and hire an attorney just to keep an eye on things, not to actively represent you. That lawyer would be called "personal counsel" and the lawyer representing your employer would be the one who would actively represent you. Report Abuse. Report Abuse.

Does an employer have insurance coverage?

However, your employer probably has insurance coverage that would protect you. This falls under the legal theory of "course and scope.". In essence you are acting on behalf of the employer and, therefore, he can become responsible for your actions so long as they are not intentional.

Can you be held liable for harm?

However, it is more likely your employer would be held liable. The issue you raise is very fact-specific and you would need to consult an attorney about specific issues if you want a more definite answer.

Can you testify in a drug lawsuit?

You would have to testify if a lawsuit was filed. You probably could get the plaintiff to promise not to collect anything from you even if you are drug into the lawsuit by your employer. However, if the city or county inspectors found out at the time, there is a slight chance they might have fined you individually.

Does homeowner's insurance cover you?

If you were on the job , your company's insurance will cover you. Your homeowner's insurance may also provide coverage, but it is unlikely. Unless your actions were malicious or intentional, the chances of anyone enforcing a judgment against you are slim as you would file bankruptcy before you let that happen.

Can you sue another driver for workers compensation?

For instance, if a worker is injured in an automobile accident while running a job-related errand, he or she has the right to collect workers compensation benefits from his or her employer. If the accident was the result of another driver who does not work for the same company, the injured worker can sue the driver of the other vehicle for all ...

What is the no contact rule in Pennsylvania?

Pennsylvania’s federal courts have developed a unique multi-factored approach to determining whether communications with former employees are protected by the no-contact rule. In Dillon Companies, Inc. v. The SICO Company [1993 WL 492746 (E.D. Pa. 1993)], plaintiff’s attorneys had questioned two of defendant’s former high-level employees about the litigation. Defendant argued for a blanket rule that the no-contact rule prohibited communications with an adversary’s 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 defendant’s former employees. The court refused. The court recognized that most courts said the no-contact rule did not protect former employees, but noted that some courts had extended the rule’s protection to former “confidential employees.” The court resolved this split by concluding:

What is the dicta in Niesig v. Team I?

Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. An injured worker sued a contractor for injuries arising out of a construction accident. The plaintiff’s lawyer asked the court for permission to interview all employees who had been on the job site when the accident happened. The contractor argued that all of the employees were off limits under New York’s “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.

What was the motion to strike Richard Redmond?

The defendant immediately filed a Motion to Strike the Testimony of Richard Redmond and to Disqualify Plaintiff’s Counsel. The court granted the motion. The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees.

What is the no contact rule?

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 party’s lawyer or is authorized by law to do so . Or are former employees considered “unrepresented” parties who may ...

Does the no contact rule apply to former employees?

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.

Can a former employee speak for a corporation?

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. [ See, e.g., Wright by Wright v.

Can you disclose your role in litigation?

Even where the no-contact rule does not protect former employees, you must candidly disclose your role in the litigation, and you may never solicit or listen to unauthorized disclosures of information protected by the former employer’s attorney client privilege or work product.

Daniel Knight Dinneen

The defendant's employee is considered to be under the control of the defendant. Thus, all you need to do is notice the deposition and the defendant will produce him/her for the deposition.

Frank Wei-Hong Chen

If the deponent is currently an employee of the entity defendant, a notice of taking deposition is sufficient. A deposition subpoena is not necessary.

Eduardo A. Brito

Your info is a little sketchy, but: If you are seeking the deposition of a current employee and your defendant is a business entity (e.g., corporation), then you do not need to serve a subpoena. Instead, serve a notice of deposition of the employee. The employee is not a party in this scenario, but an employee of a party...