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California Appellate Court Issues Important Ethical Opinion Regarding Lawyers Representing Harassment Victims

If you represent a victim of someone who suffered harassment in the workplace, can you contact another employee victim to get evidence? In Doe v. Superior Court (2019) Westlaw 2480029 (no official cite available yet) the Court of Appeal, Fourth District, Div. 1 answered this question "yes."

In her complaint, plaintiff victim alleged that another employee, "Andrea," was also a victim of Southwestern College's abusive conduct. Plaintiff's counsel noticed Andrea's deposition. Defense counsel told plaintiff's counsel that Andrea remained employed by the college and was entitled to representation and defense counsel was in the process of securing conflict counsel for her. The next day, plaintiff's counsel informed defense counsel that he now represented Andrea. The college cried foul and said plaintiff's counsel violated California Rule of Professional Conduct, rule 4.2 by communicating with Andrea. That rule prohibits lawyers from communicating with witnesses who are represented by counsel and current employees of a represented organization if the subject of the communication is any act or omission of that person which may bind the organization.

The college filed a motion to disqualify plaintiff's counsel, and the trial court granted it. The appellate court reversed. The appellate court reasoned that Rule 4.2 permits opposing counsel to initiate contact with present employees (who are not officers, directors or managing agents) who do not have counsel, so long as the communication does not involve the employee's act or failure to act in connection with the matter which may bind the organization, be imputed to it, or constitute an admission of the entity for purposes of establishing liability. Andrea was a victim, like plaintiff. And there was no evidence the subject matter of the contact concerned Andrea's act or omission related to plaintiff's claim. Andrea is simply a witness who has knowledge of events surrounding the dispute. And Andrea's reporting of similar misconduct (or failure to report) did not bind the college. The primary relevance of her testimony is that she may have provided notice to the college regarding similar misconduct that could have avoided the harm to plaintiff.

"We therefore hold that where a plaintiff-employee claiming harassment and/or a hostile work environment seeks to rely on evidence of similar misconduct provided by another alleged employee-victim, ex parte communication with that second employee does not concern 'an 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.'"

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