Hello again:
While waiting for you to answer my request for clarification, I've
been thinking about and researching your question.
I'll start by answering your specific questions, but I have more to
say in Part II below.
Part I:
Q. "Should I insist that my employer's request to meet with their attorney
be in writing and authorized by a company official at a high enough
level?"
A. I don't know how bureaucratic your company organization is, but I
think it's safe to assume that an attorney for your company whether
inside counsel (that is, an attorney who is a regular employees of the
company) or outside counsel, wouldn't be asking to interview you
unless they have proper authority to do so. So I don't think you need
specific high-level permission to speak to your employer's
counsel--simply make sure that your boss or supervisor knows that
you've been contacted by company counsel for an interview [there's no
reason why the fact that you're being interviewed should be a secret].
Do be absolutely sure, of course, that the attorney you're meeting
with is representing your company (it'll be obvious if you know
they're employed by your company; if they're outside counsel it's fair
for them to request the interview in a letter in which they tell you
that they are representing your company). It would be a disaster if
unknown to you they were representing the adverse party that's being
sued by your employer.
Q. "Should I request that my company's written authorization include
guidance/ direction about the type of information they want me to
disclose to their attorney?"
A. No, you needn't and shouldn't ask for guidance/direction. Your
role in the interview is to answer honestly and completely (more about
this below) and you wouldn't want them to guide you in any different
way.
Q. "Should I ask my employer for general guidance on how to meet and deal
with an attorney?"
A. I think this is the same as the prior question - - there's nothing
they can tell you other than to be truthful and cooperative, so what's
the point?
Q. "Are there any circumstances where I should engage my own legal counsel
before cooperating with my employer's request to meet with their
attorney?"
A. Yes, there could be such circumstances, which is what I had in
mind in my clarification request. Here are some of the questions that
you would expect to hear from your own counsel (if you had one) in
advance of the interview:
--Why do you think they want to talk to you?
--Do you think anyone could accuse you of having done something wrong.
--Purposely wrong or accidentally wrong?
--Could you be accused of having done something outside the scope of
your employment, that is, the sort of thing that you wouldn't have
wanted your employer to know you were doing (examples would include a
dishonest or disloyal act or something for your personal benefit
rather than the company's benefit)
--Do you think you or your company did anything wrong?
--Purposely wrong or accidentally wrong?
--Since your company is the plaintiff, can you think of any reason why
the person its suing would have a counterclaim (something to sue your
company for?)
--Has anyone else contacted you about this matter, or have you heard
other people inside or outside the company talking about it?
How you (honestly) answer these questions will go a long way toward
determining whether you need separate counsel.
Part II:
I'm going to assume here that based on how you would answer those
questions, you don't need separate counsel. So what should you expect
and how should you behave in the interview?
If the attorney that interviews you is smart and capable, they will
have considered some of the issues raised in this well-written and
pertinent professional article:
SELECTED ETHICS AND PROFESSIONALISM ISSUES
IN LABOR AND EMPLOYMENT LAW CASES
Dennis P. Duffy
University of Houston
http://www.bnabooks.com/ababna/ethics/2002/duffy.doc
Mr. Duffy would have the company lawyer give you a statement as
follows at the start of the interview:
------------------
"I am a lawyer and represent [the company]. This interview is for the
purpose of giving legal advice to [the company] and for the purpose of
investigating facts about issues raised and [describe proceeding or
matter]. Anything you tell me may be disclosed to the company and or
in connection with the [proceeding or matter].
This interview is covered by the attorney client privilege. This
means that the things I say to you during this meeting and the things
you say to me during this meeting are confidential. Please do not
disclose to others what is said during this meeting. You are not
prohibited from discussing the fact that we had this meeting. Rather,
you are prohibited from disclosing the content of what you and I say
during this meeting.
The company will not retaliate against you because you tell me
anything unfavorable to the company [you may also wish to add: this
guaranty of no-retaliation, however, is of course not a grant of
immunity of any violation of company policy you may have already
committed, if any.] Also, I cannot promise to keep anything you tell
me confidential or secret from the company.
Finally, please let me know if opposing counsel seeks to contact you
about this matter.
Signature_________________ Date:_____________________ "
------------------
Now, maybe the company lawyer won't actually give you a form like
that, and probably it would be presumptuous of you to bring a form
like that with you. But you should ask the lawyer to confirm at the
start of the interview (if he or she doesn't do it without being
asked) each of those points:
-that they're a lawyer and represent [your company]
-whether given your status with the company they're also representing
you [the answer to this is probably 'no']
-that the interview is for the purpose of giving legal advice to [the
company] and for the purpose of investigating facts about issues
raised in the proceeding or matter
-that anything you tell them may be disclosed to the company and or in
connection with the proceeding or matter
-that the interview is covered by the attorney client privilege,
meaning that the things said by them and you during the meeting are
confidential except as to the company
-that they do not want you to disclose to others what is said during the meeting
-that you are not prohibited from discussing the fact that you had this meeting
-that the company will not retaliate against you because you tell
anything unfavorable to the company
With that established, you should be able to have the interview in a
way that will be useful to the company and consistent with proper
ethics rules.
After all, as the lawsuit proceeds, it's entirely possible that the
other party will also require an interview with you. If they contact
you privately ('ex parte' in Mr. Duffy's article) you should talk to
your company attorney first. More likely they will depose you or
other employees about the case (a deposition being an interview under
oath and with a court reported keeping a record). If there's going to
be a deposition, it would be fair for your own company's attorney to
prepare you in advance, not telling you what to say but helping you to
anticipate how it's going to go and how to respond to questions that
seem unfair or where you don't know the answer.
I hope you find this useful, and please do request clarification of my
answer if any of it is unclear.
Search terms used:
ethics disclosure employee attorney interview civil plaintiff
Sincerely,
Google Answers Researcher
Richard-ga |
