Colin Kelly of Shook, Hardy & Bacon, Jeff Ward, President of the Georgia Defense Lawyers Association, and Lyle Warshauer of the Georgia Trial Lawyers’ Association. Courtesy Photos / ALM
The Georgia Defense Bar is about a seemingly simple change in the arms of a formal advisory opinion from the State Bar of Georgia that includes guidelines for contacting former employees of a company.
The proposed new formal advisory opinion, 20-1, states that plaintiffs’ attorneys can contact former employees of a company without first notifying or obtaining the consent of the company’s attorney. It also establishes disclosure rules for the attorney who contacts the former employee, in more detail than formal Opinion 94-3, which the proposed rule would replace.
“This has made a lot of people in the defense bar and the business world quite concerned,” said Jeff Ward, president of the Georgia Defense Lawyers’ Association and partner at Drew Eckl & Farnham. “If a disgruntled former employee wants to return to a former employer, this is one way to do so.”
Twenty-two bar associations, corporations, industry associations and two major law firms – Shook, Hardy & Bacon and Troutman Pepper – signed a letter opposed to the proposed opinion. You want the plaintiff’s attorneys to notify the company’s attorneys first before contacting a former employee.
Numerous other defense law organizations have sent separate letters of objection to the prosecutor before the December 16 public comment period expired. The proposed opinion will then be submitted to the Georgia Supreme Court for final approval.
The signatories of the letters say that each former employee should continue to be viewed as being represented by the organization’s attorney in order to protect potentially privileged company information.
The GDLA, one of the signatories, sent its own letter to the bar in which it spoke out against the proposed new opinion. Ward said the major concern for GDLA is protecting potentially privileged organizational information.
“Our position is that there should be no distinction between current and former employees,” said Ward, since former employees, whether low or intermediate, may not know whether information is privileged. “Privileges do not belong to the individual. It belongs to the company and survives the employment relationship. “
What 20-1 says
Opinion 20-1, however, is about privileged information – the crux of the matter for the defense bar.
“In particular, the lawyer may not request any information that may be protected by lawyer or client law or any other privilege to provide evidence,” the statement said.
It is also advised that attorneys contacting former employees must disclose the identity of their client, the nature of the client’s interest in the former employer, the reason for communication, and the information sought.
The GDLA letter recognizes this part of the opinion, but says that it falls short.
“The proposed FAO No. 20-1 would prohibit an attorney from inquiring about privileged information, but this is not adequate protection as only direct inquiries are prohibited. This would not protect against a seemingly innocuous question that resulted in the former employee revealing privileged information. “
Shook Hardy’s Atlanta managing partner, litigator Colin Kelly, said 20-1 does not accommodate a scenario where the former employee does not know information is privileged.
Kelly said Ethics Rule 4.2, which is directed to attorneys engaging ex parte with company employees, is “largely silent” about the distinction between current and former employees. For this reason, many of the plaintiffs’ lawyers “made mistakes in asking permission to contact former employees when [they were] A senior decision maker who has likely been involved in privileged discussions with external or internal consultants.
“This process was often transparent, professional, and avoided ex parte discussions that lead to privileged discussions or disclosures,” he said.
Kelly’s concern is that the plaintiffs’ attorneys will instead contact former employees directly if 20-1 is issued as written.
“Much of the current professional courtesy is very likely to end, and we just need to trust the adverse attorneys’ ethics to provide the required information under 20-1 – something that is difficult to confirm retrospectively,” he said.
The company’s attorneys must also “hope, rather than confirming at the beginning of the contact process, that the former employee understands what is and is not a trade secret, a confidential, privileged work product of the company, and why it should be protected.” he added.
However, David Lefkowitz, chairman of the prosecution’s formal advisory board, said 20-1 does not differ materially from 94-3, the opinion it would replace. Lefkowitz from the Lefkowitz Company in Athens spoke on behalf of the FAO Board at the request of the Attorney General.
“Nothing has changed and nothing is new,” he said, noting that 94-3 similarly addressed the problem of contacting former employees without first consulting a company’s lawyer. The proposed FAO 20-1 addresses the Defense Bar objections in a language that mirrors the earlier language of 94-3.
“An organization client’s attorney would no doubt prefer not allowing an adverse attorney to communicate with former employees of the organization for information that could be used against the organization,” according to proposed FAO 20-1.
20-1 also adds that this would make the “information control” too one-sided.
“However, the prohibition of such communications by a lawyer without the consent of the organization’s lawyer would give that lawyer a right of information control that is not supported by a rule of professional conduct,” it said.
The opinion also looks at rule 4.2, which Kelly mentioned, and concludes that it does not apply to former employees. It is stated that Comment 4A of Rule 4.2 “nowhere suggests that a former employee is covered by the protection of Rule 4.2. The only reasonable conclusion from this omission is that rule 4.2 does not apply to former employees. “
Lefkowitz said the only reason the board decided that Opinion 94-3 needed to be replaced with 20-1 was because 94-3 was based on a 1987 FAO that had been withdrawn for unrelated reasons. “This was done independently by us and without formal solicitation from a lawyer,” he said.
“The board decided that 94-3 needed to be reworded with exactly the same conclusion. It was reformulated – and it was passed unanimously, ”said Lefkowitz.
With regard to ex parte communication, the guidelines for 20-1 were unchanged.
“In either opinion, you need to tell the former employee why you are calling and ask if they are represented by a lawyer. When they are represented, the conversation ends, ”said Lefkowitz.
Not on the plaintiffs’ bar radar
While the proposed new opinion has shattered the defense barrier, many of the plaintiffs’ lawyers were not even aware of it.
“It wasn’t on our radar at all,” said Georgia Trial Lawyers Association president Lyle Warshauer of the Warshauer Law Group. “We wouldn’t have looked for it, but we have no objection to it.”
“I find it kind of humorous that they object to this,” she added, as she believes the defendant organization is getting more protection from the more detailed disclosure requirements of 20-1 for the attorney who contacts the former employee.
“Disclosures that were previously only implied are now mandatory,” said Warshauer.
The new statement “sets very specific parameters of what the attorney must disclose and what communication can take place,” she said, noting that attorneys must now disclose the reason for their communication and the information they are looking for.
As a result, Opinion 20-1 “presents more barriers for someone to get information from a former employee,” she said.
Warshauer added that former employees with privileged company information would be more of a problem in inter-company disputes than in a typical personal injury case. That might explain why it wasn’t on the GTLA’s radar.
The Defense Bar Association’s objections “read privileges very widely,” she added, noting that there are ways for a company to protect privileged or trade secret information when an employee leaves the company, such as a nondisclosure agreement.
“It is the company’s responsibility to protect this privilege in ways other than muzzling anything that is not remotely privileged,” she said. “You can’t make a rule that a lawyer can’t talk to a former employee.”