Thursday, January 18, 2007

New York rules pertaining whether one can contact an adversaries former officer without disqualification

Can we, as counsel representing the defendant, legally contact one of the Plaintiff's former officers, without having knowledge if that officer is currently being represented by counsel?

The short answer to your question is that we may contact any former employee without breaking the Code of Professional Responsibility. However, counsel representing the defendant may not look to elicit privileged information from former Plaintiff officers.


In Muriel Siebert & Co. v. Intuit Inc., 820 N.Y.S.2d 54, 56 (2006), the court found that counsel appropriately interviewed a former officer of its adversary without notice to the other side.

The defense counsel conducted a pre-deposition interview of the witness for approximately three hours. At the commencement of the interview, defense counsel's colleague warned the executive to be careful not to disclose any privileged information, including any legal strategies or communications with plaintiff's counsel. Id.

Furthermore, the lower court decision of Muriel Siebert & Co. v. Intuit Inc., 2006 N.Y. Misc. Lexis 3991, * 4 also considered the following opinions from Professor Hazard, in determining if an attorney should be disqualified for talking to a former officer:

"disqualification is warranted "where it is evident that the interview was conducted for the very purpose of obtaining confidential information, (Hazard & Hodes, The Law of Lawyering ยง 38.7 [3d ed 2005][emphasis added]; see also Model Rules of Professional Responsibility 4.2)." Id.

Based on the above analysis, Defendant counsel may contact any former Plaintiff officer as long as Defendant counsel provides a warning to the officer they seek to be careful: not to disclose any privileged information, including any legal strategies or communications with Plaintiff's counsel in order to avoid disqualification.

Wednesday, December 20, 2006

First Post

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