Touche Pas; “No Contact Rule” Revisited

Twice in six months, the Court of Appeal, Fourth Appellate District, Division One, reversed San Diego trial courts that disqualified lawyers—or the whole City Attorney’s Office—for violation of Rules of Professional Conduct, former rule 2-100, current rule 4.2, prohibiting communication with a represented party or person without the other lawyer’s consent: the “no contact rule.”

Most recently, the court addressed rule 4.2 in Jane Doe v. Superior Court (2019) _Cal.App.5th_, 2019 WL 2480029 (June 13, 1019); in December 2018, in City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, the court addressed former rule 2-100. In both, it reversed lawyer disqualification, in one instance finding no ethics violation; in the other, in spite of an obvious violation.

Jane Doe v. Superior Court
In Jane Doe, a student-employee in the Southwestern College police department brought claims of sexual harassment and sexual assault against the Community College District and three District employees. The complaint also alleged sexual harassment of two other female District employees presumably relevant because it provided notice to the District about similar misconduct by at least one involved employee. The plaintiff’s lawyers identified one individual, Andrea P., as a “current District employee who may be a percipient witness to some allegations giving rise to this lawsuit,” and noticed her deposition. A lawyer for the District and two individual defendants told the plaintiff’s lawyer that Andrea P., as a current District employee was “entitled to representation” and that he “was in the process of securing conflict counsel for [her].” He requested the deposition be rescheduled to which plaintiff’s lawyer agreed. The next day, however, the plaintiff’s lawyer communicated to the District’s lawyer that he now represented Andrea P.

Letter exchanges with accusations about direct contact with District employees when suing the District ensued, followed by the successful motion to disqualify plaintiff’s lawyer.

Rule 4.2, subdivision (a), prohibits communication “directly or indirectly about the subject of the representation with a personthe lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” [Emphasis added.] Former rule 2-100 prohibited communication with a represented “party”—rule 4.2 thus significantly expands the scope of the rule’s prohibition.

The court of appeal said the trial court order was not “completely clear” whether Andrea had retained her own lawyer, and, thus, was a currently represented person within the scope of subdivision (a) when the plaintiff’s lawyer contacted her. The court of appeal, however, found no evidence of representation; no evidence that she had agreed to be represented at the District’s expense; hence, she was not a represented person at the time of the communication and, thus, no violation of rule 4.2, subdivision (a). At most, the district expressed the intent to offer to provide her a lawyer.

Rule 4.2, subdivision (b) (2) prohibits communication with a current employee of a governmental organization, among others, “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.”

As an alleged victim of sexual harassment, communication with Andrea did not concern her own actions or omissions concerning the dispute, but her percipient knowledge of events. Moreover, whether she reported or failed to report any alleged misconduct would not be the type of act or omission that could be binding on the District; rather only the District’s own conduct can bind it. Thus, there was no violation of rule 4.2, subdivision (b) (2) and disqualification was improper.

City of San Diego v. Superior Court
In City of San Diego, the court of appeal agreed with the trial court that the City had invaded a plaintiff’s attorney-client privilege in two compelled interviews and a deputy city attorney had violated former rule 2-100 by directly communicating with a party whom she knew was represented by counsel about the subject matter of the representation. The court, however, reversed the trial court’s disqualification of the City Attorney’s Office as the appropriate remedy.

A police detective, Hoover, had sued the City for employment harassment and retaliation for her reporting internal misconduct. Her lawyer brought another action against the City and a confidential police report connected to that action was leaked to the press. The City suspected Hoover had a role in the leak. Two internal affairs detectives questioned her under threat of losing her employment if she refused to answer their questions. They asked her about communications between her and her lawyer and she asserted the attorney-client privilege. After the first interview, the City Attorney’s office took the position that the attorney-client privilege did not apply to questions about communications between Hoover and her lawyer related to the other action he filed against the City. Meanwhile, Hoover’s lawyer complained to the office of the City Attorney and to the City Attorney herself.

The City summoned Hoover to a second interview with internal affairs; this time a deputy city attorney also attended. Again, the internal affairs detectives pressed Hoover about conversations she had with her lawyer. Then the deputy city attorney began questioning Hoover—without getting permission from Hoover’s lawyer—both about conversations she had with her lawyer but also about her claims against the City—the “matter of the representation.”

Hoover brought a motion to disqualify the City Attorney’s Office. Citing Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, the trial court disposed of the City’s arguments that the Hoover-lawyer communications were not attorney-client communication, entitled to protection. Further, citing State Compensation Insurance Fund v. WPS, Inc. (1999)70 Cal.App.4th644, (State Fund) and Clark v. Superior Court, (2011) 196 Cal.app.4th 37 (Clark)—a fourth district decision—the trial court determined not only that a lawyer who violates these ethical standards may be disqualified but that, under Clark, “disqualification is proper as a prophylactic measure to prevent future prejudice to the opposing party from information that attorney should not have possessed.” Here, there was no inadvertence; the City and the deputy city attorney deliberately and, on their own, set out to obtain information that the court held was covered by the attorney client privilege. It held that disqualification was warranted “to preserve the public’s trust in the integrity of the judicial process and to prevent future prejudice to the plaintiff.”

The court of appeal agreed that the City had improperly invaded Hoover’s attorney-client privilege and that the deputy city attorney had violated former rule 2-100. The court of appeal determined, however, as a matter of fact, that the City had learned nothing privileged in spite of these violations such that it would not have an unfair advantage going forward—a conclusion at odds with the trial court’s determination that disqualification was necessary to “prevent future prejudice to the plaintiff.” The court of appeal did not address the integrity to the judicial process rationale for disqualification.

Comment
Justice Dato authored both decisions for unanimous panels, joined each time by Justice Huffman and  once each by Justices Irion (Doe) and Haller (City of San Diego).

Is there guidance for San Diego lawyers? As Lao Tzu warned: “Those who have knowledge, don’t predict. Those who predict, don’t have knowledge.” 6th Century BC.

Any lawyer who takes these two decisions to mean that rule 4.2’s “no contact” rule may be out-of-favor, does so at his or her peril. It is a Rule of Professional Conduct, newly expanded in scope, violation of which may subject any of us to State Bar discipline or court sanction—even disqualification in the appropriate case.

Both cases do suggest that—statistics on unfavorable court of appeal responses to writ petitions notwithstanding—the court did pay special attention to two lawyer disqualification cases. In one, disqualification was improper because the lawyer had not committed an ethics violation. In the other, disqualification was unwarranted, in spite of a clear ethics violation, because of a lack of future prejudice. Will future disqualification orders receive the same scrutiny? Back to Lao Tzu.

Edward J. McIntyre is an attorney at law.

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**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**