Jane Doe v. Superior Court
248 Cal. Rptr. 3d 314, 36 Cal. App. 5th 199 (2019)
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Rule of Law:
California Rule of Professional Conduct 4.2(b)(2) does not prohibit ex parte communication between a plaintiff's attorney and a current employee of a governmental organizational defendant if the communication concerns the acts or omissions of another employee, and the contacted employee's own acts or omissions are not binding upon or imputed to the organization for purposes of civil or criminal liability.
Facts:
- Jane Doe, a student-employee in the campus police department at Southwestern College, alleged sexual harassment and sexual assault against Southwestern Community College District and three District employees.
- Doe's complaint described repeated unwelcome sexual comments by her immediate supervisor, Ricardo Suarez, and a sexual assault by defendants Kevin McKean and Joseph Martorano.
- Doe asserted that District management responded inadequately or not at all to her complaints.
- Doe's complaint also alleged instances of sexual harassment by Suarez directed at least two other female employees, including College Service Officer Andrea P.
- Andrea P. was allegedly a victim of sexual misconduct similar to Doe's and may have seen or heard things that could confirm Doe's allegations about Suarez.
- Manuel Corrales, Jr., one of Doe's lawyers, contacted Andrea P. to discuss evidence of other alleged acts of sexual harassment by Suarez.
- Before Corrales contacted Andrea P., District attorney Matthew Wallin informed Corrales that Andrea P. was a current District employee, was "entitled to representation," and Wallin was "in the process of securing conflict counsel for her."
- At the time Corrales contacted Andrea P., she had not accepted the District's offer for representation nor otherwise retained her own counsel.
Procedural Posture:
- Plaintiff Jane Doe filed a complaint against Southwestern Community College District and three District employees in a trial court (superior court), alleging claims relating to sexual harassment and sexual assault.
- Defendants (Southwestern Community College District and employees) filed a motion to disqualify Manuel Corrales, Jr., one of Doe's lawyers, alleging he violated Rule 4.2 of the California State Bar Rules of Professional Conduct by contacting District employee Andrea P. without their authorization.
- The trial court granted the defendants' motion to disqualify Corrales.
- Doe (petitioner) filed a petition for a writ of mandate with the Court of Appeal, Fourth Appellate District, Division One, seeking to vacate the trial court's order disqualifying her counsel.
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Issue:
Does California Rule of Professional Conduct 4.2(b)(2) prohibit ex parte communication between a plaintiff's attorney and a current employee of a governmental organizational defendant when the employee is an alleged victim of similar misconduct by another employee and the communication concerns that other employee's actions, rather than the contacted employee's acts or omissions that could bind or be imputed to the organization?
Opinions:
Majority - Dato, J.
No, Rule 4.2(b)(2) does not prohibit ex parte communication in this scenario. The court first clarified that Andrea P. was not "represented" by counsel under Rule 4.2(a) at the time Corrales contacted her. There was no evidence she had accepted the District's offer for representation or retained her own attorney; an attorney's unilateral declaration of intent to provide representation does not create an attorney-client relationship. The core question then turned to Rule 4.2(b)(2), which prohibits communication with a current employee of an organization if the subject of the communication is "any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability." The court found that Corrales's contact with Andrea P. was to discuss evidence of other alleged acts of sexual harassment by Suarez, making Andrea P. a percipient witness and a potential victim, not an employee whose own acts or omissions were at issue for imputing liability to the District. While Andrea's act of reporting Suarez's misconduct might be relevant to the District's own liability for its response, Andrea's acts themselves are not the type that would be "imputed to" the District for purposes of imposing liability upon her. The rule is intended to prevent contact regarding an employee's actions for which the employer might be liable, not to prevent gathering relevant evidence about another employee's actionable misconduct from a percipient witness who happens to be an employee.
Analysis:
This case offers crucial guidance on the scope of California Rule of Professional Conduct 4.2, specifically clarifying when attorneys can engage in ex parte communications with current employees of an organizational defendant. It affirms that the rule does not create an automatic 'no-contact' zone around all employees, particularly distinguishing between employees whose own conduct could impute liability to the organization and those who are merely percipient witnesses to the misconduct of others. This decision is significant for plaintiffs' attorneys in hostile work environment and harassment cases, as it facilitates access to critical information from other potential victims or witnesses within the defendant organization, potentially lowering the barriers to fact-gathering and evidence discovery. It reinforces the principle that the rule aims to protect the organizational client from unfair tactical advantage, not to obstruct access to factual information from non-managerial employees who are not individually represented and whose actions are not the basis for the organization's liability.
