Gunning for Trouble

Rivera v. Lutheran Med. Ctr.

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.

BuLITS Points

  • You 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.
  • Be 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.

And Remember

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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