Attorney Client Privilege With Former Employees In Fairfax
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FAQ
The protections of the attorney-client privilege survive indefinitely. This means that the protections remain in place even when the attorney-client relationship ends, no matter if the relationship ends due to voluntary termination or due to the death of one of the parties.
Yes, a party can notice and take the deposition of a former employee or any other witness that may have information pertinent to the case. In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence.
The United States Supreme Court rejected the control group test in Upjohn v. United States, 449 U.S. 383 (1981). Most courts now apply the Supreme Court's reasoning in that case to corporate privilege claims, including those involving former employees.
It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance.
A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless ...
There are two major exceptions to the lawyer-client privilege under the California Evidence Code, as discussed below. 2.1. Crime or fraud. 2.2. Preventing death or substantial physical harm.
The so-called Upjohn warning takes its name from the seminal Supreme Court case Upjohn Co. v. United States,1 in which the court held that communications between company counsel and employees of the company are privileged, but the privilege is owned by the company and not the individual employee.
Commercial litigators are very familiar with the age-old client question: “Can the opposing party contact my former employee directly?” While there are several strategy considerations at play, the short answer in most jurisdictions is yes.
Unethical attorneys may breach attorney-client privilege for their own gain. If they have the chance to profit from your information or your case presents a conflict of interest for them, unbeknownst to you, they may intentionally divulge privileged information to benefit or protect themselves.
Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.