Virginia Lawyers Weekly

An employee claims she was fired when male coworkers were kept on after comparable misconduct. Her lawyer wants to talk to the employer’s former human relations manager about what happened.

Under Virginia rules, a defendant employer can’t necessarily stop the lawyer from talking to the HR manager. But there are limits to what they can talk about and how the information can be used. Getting the rules out front can save time on all sides.

The rules that govern ex parte contacts with a company’s former employees can take the form of warnings that a lawyer should share at the outset with a former employee. In a case out of Danville federal court, U.S. Magistrate Judge Michael F. Urbanski fashioned a series of guidelines that read almost like Miranda warnings for ex parte contact.

In Bryant v. Yorktowne Cabinetry Inc., VLW 008-3-072, Patsy Bryant, a former line area leader, was fired on suspicion of falsifying leave records. She sued under Title VII, claiming she had often been asked by superiors to alter attendance and leave records and that males were not disciplined for their misconduct. She also alleged in her complaint that when she sought a promotion, she was told she needed a college degree, but male coworkers were promoted without a degree.

After Bryant’s lawyer had an ex parte telephone conversation with Anne Goins, Yorktowne’s former HR manager, Yorktowne went to court to demand the contents of the conversation and an order prohibiting further ex parte contact. The employer complained that the questions posed by plaintiff’s counsel, and answered by Goins, revealed Goins’ “involvement in virtually every decision forming the basis of Plaintiff’s discrimination claims.”

Urbanski reviewed case law, Virginia Rule of Professional Conduct 4.2 and Legal Ethics Opinion 1670, and said Bryant’s lawyer could talk to Goins if she had no lawyer of her own, she wanted to talk, and they steered clear of confidential or privileged information.

Urbanski wrote that although Virginia rules “allow communication with former corporate employees, including those with managerial responsibilities, opposing counsel must tread very carefully …” To help lawyers watch their step, Urbanski suggested the following procedures:

• When first contacting a former employee, immediately identify yourself as the attorney representing the plaintiff and specify the purpose of the contact.

• Determine whether the former employee is associated with the defendant, or has a personal lawyer. If so, the contact must stop immediately.

• Tell the former employee that the employee can choose not to talk, or can choose to talk only in the presence of personal counsel or the defendant company’s lawyer.

• The lawyer should advise the former employee not to disclose privileged or confidential corporate materials, and stop the conversation if it appears to venture into that territory.

• The lawyer should keep a list of all former employees contacted, the dates of the contact, and preserve any and all statements or notes resulting from such contacts, by phone or in person.

In the Bryant case, notes of the conversation with Goins passed muster after Urbanski’s in camera review, and he denied the motion to stop all contact with former employees.

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