In an employment lawsuit, can a lawyer representing an employee contact employees who no longer work for the employer? What if the former employees are former managers? This is important since in most employment cases, the only witnesses are current or former employees.
The answer is yes. The Northern District of Texas so decided in Orchestrate HR v. Trombetta, 178 F.Supp.3d 476, 486 (N.D.Tex. 4/18/2016). In this suit, Orchestrate HR sued its former employee, Anthony Trombetta and his new employer, The Borden-Perlman Insurance Agency, Inc., for claims arising from a non-compete agreement. Mr. Trombetta’s lawyer asked Plaintiff’s lawyer if she could contact certain employees, who no longer worked for Orchestrate. The Plaintiff’s lawyer said no. Defendant’s lawyer contacted them anyway. Plaintiff moved for sanctions. The court found that no disciplinary or ethical rule prohibits a lawyer from contacting a former employee. The court noted this finding applies to management as well as lower ranking employees.
But, because the attorney violated her agreement not to contact the witnesses, the court still sanctioned the lawyer and her client. The court ruled that certain information must be provided to the Plaintiffs and he ordered the parties to confer regarding how much would be necessary for an award of attorney’s fees.