July 17, 2007
Former Employee Interviews
A discount brokerage firm entered into an agreement with a manufacturer of financial software to create and operate an Internet brokerage service. The deal went south and litigation ensued. A senior officer of the brokerage firm who was a major player in the events at issue then took a leave of absence from the firm "to negotiate the terms of his impending seperation and eventual termination."
After the senior officer was terminated, the attorneys for the software manufacturer interviewed him without the knowledge of opposing counsel. The employee was cautioned not to disclose privileged or confidential information. The interview focused on the facts of the case.
When opposing counsel learned of the interview, a motion to disqualify was filed and granted by the New York Supreme Court. The Appellate Division reversed. The Court of Appeals affirmed. The court's opinion in the Niesig case "makes it clear that ex parte interviews of an adversary's former employee are neither unethical or legally prohibited." Here, the admonition to avoid disclosure of protected information, which the former officer stated he understood, made disqualification unwarranted. (Mike Frisch)
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