Case: Rivera v.
Lutheran Med. Ctr., 866 N.Y.S.2d 520 (N.Y. Sup. Ct. 2008).
Status: Ready, Aim, Fire
Plaintiff Rivera claimed that his employment was wrongfully terminated
because of his association with a disabled person and not because of the sexual
harassment alleged by his employer, Lutheran Medical Center (LMC). Discovery showed that LMC's attorneys had
contacted all non-party LMC employee witnesses and, at LMC's expense, entered
into retainer agreements to represent them. This arrangement deprived Rivera of
the specific right he had under jurisdictional law to conduct informal
interviews with unrepresented non-party employee witnesses. The trial court held that the attorneys had
improperly solicited the LMC employee witnesses in violation of the relevant Code
of Professional Responsibility. The
court disqualified LMC's counsel from representing the involved employees and
reported the law firm's misconduct to the Disciplinary Committee. The trial
court noted that counsel's conduct was part of practice (including marking
ordinary documents as "classified") designed to improperly thwart Rivera's
rightful discovery efforts.
can't prevent the opposing side from conducting informal witness
interviews with non-party witnesses just by having outside counsel contact
them and offer representation.
very careful when you have outside counsel contact former and current
non-party employees. You never want
a court to suggest that outside counsel is improperly soliciting
clients in order to thwart the other side's discovery rights.
- If an
agreement for representation arises, you need to be able to show (at least
according to this court) that the initial request for representation came
from the witness and not from the solicitation of counsel.
The Code of Professional Responsibility covers every retainer agreement. Don't let the exigencies of litigation let
arrangements with non-party witnesses-particularly employee non-party
witnesses-become a chance for the other side (or the court) to besmirch your
reputation and accuse you of acting like a hired gun.
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