Court Allows Lawyer’s Contact with Opposing Party’s Employee

By Carole J. Buckner, Partner & General Counsel, Procopio, Cory, Hargreaves & Savitch, LLP. 

Carole J. Buckner represents lawyers and law firms and is an expert witness on legal ethics and professional responsibility.  The views expressed are her own.

Employees of a defendant employer can be an important source of evidence for plaintiff’s counsel in employment litigation.  However, a lawyer who contacts an opposing party’s employee may be at risk of disqualification.  Therefore, it is important to understand when a lawyer can contact an employee of the opposing party, and when such contact is prohibited.  In Doe v. Superior Court (Southwestern Community College District), 36 Cal.App.5th 199 (2019), the trial court granted the defendants’ motion to disqualify a plaintiff employee’s attorney based on ex parte contact with a potential witness who was an employee of the defendant community college district in a sexual harassment case.  However, the appellate court granted a writ of mandate, and ultimately reversed, based on the language of Rule 4.2 of the California Rules of Professional Conduct.  This article examines Rule 4.2 and explains the holding in the Doe decision.

The No Contact Rule

Rule 4.2 of the Rules of Professional Conduct (the “no contact rule”) starts with a basic prohibition:  in representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent consent of the other lawyer. [1]   The purpose of the rule is to prevent the attorney from taking advantage of an opposing party by interfering with the attorney-client relationship.[2]  The first step is to determine whether the person is “represented.”

If the opposing party is an entity, corporation, partnership, association or other organization, Rule 4.2 provides that communications are prohibited with officers, directors, partners or managing agents of that organization.[3]  A “managing agent” is an employee, member, agent or other constituent of the organization with “substantial discretionary authority over decisions that determine organizational policy.”[4]   In addition, the rule prohibits contact with current employees, members, agents or constituents, but only if the subject of the communication is any action or omission of the person contacted in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability in the matter.[5]  This last provision became pivotal in the Doe decision.

In Doe, a plaintiff alleged she had been sexually harassed and assaulted and her complaint alleged harassment of two other employees, which potentially gave notice to the District of similar misconduct by one of the alleged harassers.  One of the plaintiff’s attorneys contacted A.P., an employee of the defendant-employer, to discuss evidence of other acts of harassment by a particular employee, Ricardo Suarez.  Defendants moved to disqualify the plaintiff’s attorney due to violation of Rule 4.2, the no-contact rule.

“Represented” By Counsel?

One issue addressed in Doe was whether the District “represented” A.P. through counsel for the District.  After the plaintiff noticed the deposition of A.P., counsel for the District notified plaintiff’s counsel that as a current employee, A.P. was entitled to representation, and that the District was in the process of securing conflict counsel for her, which “could take a couple of weeks.” [6]  The following day, plaintiff’s counsel indicated that he represented A.P.  The District’s counsel responded by asserting it would be improper for the plaintiff’s counsel to have contact with A.P. and that plaintiff’s counsel’s representation created a conflict of interest.  The District continued to take the position that A.P. was a represented person and that the no-contact rule prohibited contact with A.P. by plaintiff’s counsel.  The trial court agreed and granted the motion to disqualify the plaintiff’s counsel on that basis.[7]

The appellate court disagreed that A.P. was “represented” by any counsel.  Not every current employee of a represented organization is represented by the organization’s counsel.[8]  The court stated that representation is a factual question and turns on whether the individual 1) retained an attorney, 2) agreed to have any interests represented by counsel, and 3) was known to be represented by the communicating attorney.[9]  The District had offered A.P. legal representation, and A.P. never advised the District’s counsel that she did not want representation.  Importantly, however, her silence in response to the District’s offer did not constitute an agreement to be represented.  A.P. did not take any steps to engage counsel.  So, the appellate court concluded she was not “represented” at the time that the plaintiff’s counsel contacted her.[10]

Just saying you represent an employee doesn’t make it so.  One way to make clear that you are representing an employee is to obtain a signed engagement agreement.  An engagement to represent an individual is required to be in writing and signed by the parties if the fees will exceed $1,000, which may depend on the scope or the representation.[11]  Although not at issue in the Doe decision, if the employer will have the employer’s counsel jointly represent both the employer and employee, a conflict waiver should be obtained.[12]  An advance waiver allowing employer’s counsel to represent the employer, and requiring the employee to obtain new counsel, should also be considered, depending on the circumstances.[13]  If the employer is paying for the representation, this should also be addressed.[14]

Act or Omission Creating Liability?

Even though A.P. was not represented, the appellate court still had to address another limitation in Rule 4.2 prohibiting communications if the subject is 1) any act or omission of the employee in connection with the matter, which 2) may be binding upon or imputed to the organization for purposes of civil or criminal liability.[15]  Prior Rule 2-100 prohibited communication with a constituent whose statement may constitute an “admission.”[16]   New Rule 4.2 omits this reference to an “admission,”[17] potentially expanding the scope of permissible communication.   

In the Doe case, defendants argued that A.P.’s actions or inactions would give rise to liability against the District.  The trial court concluded that this language barred the plaintiff’s counsel’s communication with A.P., but the appellate court disagreed, finding that there was no evidence that the communication with A.P. concerned her acts or omissions in connection with the matter.[18]  Rather, the communications were regarding what she saw and heard concerning the alleged misconduct.  Even if the communication with A.P. involved her reporting of alleged misconduct, her actions or failure to act would not be imputed to the District for purpose of imposition of liability.[19]  Rather, the District’s liability would be based on its own conduct, including its policies, and how it responded to reports.[20]  Therefore, the appellate court reversed the trial court’s disqualification order.

Communication with Unrepresented Person

Last year, California adopted Rule 4.3 governing communications with unrepresented persons.   The lawyer cannot mislead the unrepresented party by stating the lawyer’s disinterestedness. [21]  Nor can the lawyer give legal advice to the person if the person’s interests conflict with those of the lawyer’s client.  However, the lawyer can advise the person to secure his or her own legal counsel. [22] Finally, the lawyer cannot seek privileged or confidential information from the person if the lawyer knows, or reasonably should know, that the person has a duty not to reveal the information.[23]

A lawyer questioning an unrepresented employee who is not an officer or managing agent will not be subject to disqualification if the lawyer carefully observes the limitations set forth in Rule 4.2.  But the issues of representation and the content of the communication must be carefully considered.                     

[1] Cal. Rules of Prof. Conduct, R. 4.2(a) (hereafter Rule 4.2) (prior Rule 2-100 referred to contact with a “party” but Rule 4.2 restricts contact with a “person.”)

[2] Abeles v. State Bar (1973) 9 Cal.3d 603, 609.

[3] Rule 4.2(b)(1).

[4] Rule 4.2(d)(1).

[5] Rule 4.2(b)(2).

[6] Generally, possible future representation does not prohibit communications with employees.  Jorgenson v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1401.

[7] Doe, 36 Cal.App.5th at 204-05.

[8] Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1198-1202.

[9] Doe, 36 Cal.App.5th at 205-06.

[10] Doe, 36 Cal.App.5th at 207.

[11] Cal. Bus. & Prof. Code § 6148.

[12] Cal. Rules of Prof. Conduct, R. 1.7.  The lawyer should consider whether the representation of the employee client would be materially limited by the lawyer’s representation of the employer client.

[13] Rule 1.7, comment [9].

[14] Cal. Rules of Prof. Conduct, R. 1.8.6 (Compensation from One Other than Client).

[15] Triple A Machine Shop Inc. v. State of Cal. (1989) 213 Cal. App.3d 131, 140.

[16] Former Rule 2-100(B)(2).

[17] Rule 4.2(b)(2).

[18] Doe, 36 Cal.App.5th at 321

[19] Doe, 36 Cal.App.5th at 321.

[20] Doe, 36 Cal.App.5th at 321-322.

[21] Rule 4.3(a).

[22] Rule 4.3(a), and comment [2].

[23] Rule 4.3(b).