This article considers the recent New York County Lawyers’ Association (NYCLA) Formal Opinion 747 (2014), which discusses whether and when it may be appropriate for a corporation’s attorney to offer representation to current or former corporate employees without violating the rules prohibiting in-person solicitation. Opinion 747 attempts to distinguish the decision in Rivera v. Lutheran Medical Center, 866 N.Y.S.2d 520 (Kings County Sup. Ct. 2008) aff’d 73 A.D.3d 891 (2d Dept. 2010) which disqualified a law firm for precisely such activities. While the opinion provides a welcome effort to sidestep Rivera, the framework upon which it is based will likely prove as unworkable as Rivera. Thus, a corporation’s counsel will still need to proceed with caution before offering to represent a current or former employee in New York, and should consider alternative methods of protecting the client’s interests.
Ex Parte Employee Interviews
In order to understand the context of the discussion, it is necessary to go back to Niesig v. Team I, 76 N.Y.2d 363 (1990). There, the New York Court of Appeals set forth a broad policy favoring ex parte interviews of a corporation’s current and former employees by opposing counsel—reversing both the trial court and Appellate Division which had barred counsel from conducting such interviews without consent from the corporation’s counsel. In Niesig, the plaintiff’s attorney moved for permission to interview low-level employees of the corporate defendant who had witnessed the accident at issue in the matter. Id. at 367.
