Initial Contact
Were you contacted by a private investigator, a lawyer, or a regulator wanting to ask you questions, or even (gulp), take your deposition to discuss work you did for a former employer or with a former business partner? If so, please hear this loud and clear. Unless you were super high up the chain of command, or were the mastermind behind legally questionable behavior, NO ONE BLAMES YOU and NO ONE IS AFTER YOU. They are after information you have based on your past employment or business partnership.
This is your time to shine. Your time to do some good. To make up for whatever wrongs you may have witnessed or even been a part of at your former job or partnership. Your willingness to share what you know could change the trajectory of a legal dispute in a way that alleviates pain for someone who is suffering. Alternatively, what you know may reveal that the company or person believed to be at fault is actually innocent. Knowing this, can save valuable time and resources when one is seeking resolution of their issues.
If a legal dispute hasn’t made its way to the court system yet, you’re probably being contacted for information that can provide context to aid in potential settlement negotiations or in a lawsuit should one ultimately be filed in the future. If this is the case, your former employer or business partner will likely have no idea you’ve even spoken with anyone.
But if the legal dispute has made its way to the court system, you may be contacted by your former employer/business partner’s lawyer if they hear the lawyer on the “other side” wants to speak with you. They know the information you have is valuable and may try to keep you from talking. The playbook from which they operate is fairly limited. And so, I present to you the former employer/business partner’s lawyer stereotypes:
Former Employer/Business Partner’s Lawyer Stereotypes
- The “We’re in it together lawyer.” This lawyer may take the liberty of telling the person who contacted you that they legally represent you; even if you haven’t been in touch with the company in years. When the company’s lawyer (and/or your former employer/business partner) does speak with you, they will try to convince you they already represent you, or that they can and should represent you, because you have “shared interests.” Newsflash, you do NOT have shared interests with a former employer/business partner whose conduct was legally questionable. Even if you carried out that conduct on the company’s behalf, as long as you’re not storing millions of dollars from the scheme in offshore accounts, no one is out to get you.
- The “You could get in big trouble” lawyer. Ignore the company’s lawyer’s implication that you can and/or will be sued individually (civilly or criminally) for actions you took while working for or with the company. Oh, they’ve offered to pay for an “independent lawyer” for you so there is no conflict of interest? Think again Batman. When you worked for or with the company, did it ever offer to give you free money, no strings attached? Nope! Why would they? Unless there was something in it for them. The only time it would be safe to permit a former employer to pay for your own lawyer would be if it was a lawyer unknown to the company who you picked yourself, and who you do not authorize to speak to the company’s lawyer. In my 20 years of litigating, I’ve never seen a former employer offer to pay for a former employee’s representation under these terms.
- The “Silencer” lawyer. This type of lawyer is a bit more aggressive. A tactic that often works for them. They may send you a “cease and desist letter” before you’ve even heard of the legal dispute, warning you that you could be sued if you share anything about your work with the company. If they think you have particularly damaging information, they may even sue you in state court for breach of contract, slander, or some other bogus claim. If that happens, it’s in your interest to respond to all court deadlines and be truthful in all communications with the court. If you can afford your own lawyer, that will save you time. But if you can’t afford a lawyer, just stick to the truth.
Don’t be fooled by any of the above! Your former employer/business partner does not protect your interests. They would gladly throw you under the bus to protect the company.
Plan of Action
So, what should you do? First, consider talking to the investigator, lawyer, or regulator who contacted you. Or have your own lawyer talk to them. Chances are they are interested in getting information from you informally (meaning just a phone call or two) because it will help them narrow the focus of the evidence they formally seek (or will seek in the future) in a lawsuit. For example, you may know which people at the company have relevant information, or the names, location, and content of relevant company policies. Providing information informally may mean your name is never even mentioned to your former employer/business partner or its lawyers. And if you honestly don’t have any of the information sought, make this crystal clear to the person who contacted you. They likely have better things to do with their time than beg you for non-existant information.
Appearance at a Deposition or Trial
While it may be easier in the short-term to refuse to share anything about your past employment/partnership, if you refuse to talk, or if the investigator; lawyer; or regulator, thinks you are withholding information, if a lawsuit has been filed they will probably send you a subpoena which will force you to attend a deposition. This is a formal setting in which you are placed under oath and asked questions over several hours. Everything is written down by a court reporter and probably recorded as well. Your former employer/partner’s lawyer will be there too and will also get to ask you questions. The questions will probably be designed to make you look like a rogue employee who didn’t follow company rules. You are allowed to bring your own lawyer to your deposition if you want to do so. If you find yourself in a deposition like this, again, just stick to the truth. Make sure you say exactly why you took certain actions; which supervisors directed the actions; whether you knew the conduct was questionable; and if you did, what consequences you feared if you did not comply.
Whether you appear at a deposition or not, you could also be subpoenaed as a witness at trial at some point in the future. Here too you would be placed under oath. Lying under oath is a crime, so for your sake, make sure that whatever information you share, whether informally or at a deposition or trial, is consistent and represents the truth to the best of your recollection.
Wrap Up
In summary, if you find yourself involved in a dispute involving your former employer or business partner, don’t allow fear to cloud your judgment. There’s probably a reason this is a former employer/business partner Keep that in mind as you proceed. Stay level-headed and stick to the truth.*
*One caveat here. If you know that you carried out a serious crime and did not just go along with what you were told to do by your former employer, or business partner it is your interest to hire your own lawyer who can advise you on whether you need to plead the Fifth Amendment (which permits you to refuse to answer questions that would incriminate you) during any formal questioning.