Metropolitan News-Enterprise


Wednesday, March 16, 2016


Page 1


Court of Appeal Holds:

Judge Properly Disqualified Law Firm That Conferred With Mediator Who Had Confidential Information


By a MetNews Staff Writer


The Court of Appeal held yesterday that a judge properly disqualified a law firm from representing a plaintiff in a wage-and-hour lawsuit because an attorney in the firm consulted with outside counsel who had mediated such a dispute involving different plaintiffs suing the same employer.

The ruling came in an unpublished opinion by Justice Gene M. Gomes of the Fifth District.

The employer, Foster Farms, a poultry company, found out about the consultation from what the plaintiff’s lawyers had intended as an internal email, but inadvertantly sent to the defendant’s lawyers.

Gomes said the disqualification order “implies a finding that Foster Farms disclosed confidential information” during the mediation which was imparted to the law firm handling the present litigation.

The mediator, he said, would have been disqualified from representing the present plaintiff.

“[T]the rules governing attorney disqualification in traditional attorney/client relationships apply with equal force to situations where an attorney has formed a confidential relationship with a litigant while acting as a neutral mediator,” he wrote.

And if the mediator would be disqualified, so would attorneys who conferred with that mediator, Gomes declared, explaining:

“An attorney-mediator’s conflict of interest vis-à-vis a litigant with whom he or she has formed a confidential relationship through mediation can be vicariously imputed to other attorneys and law firms.  For this to occur, the tainted attorney-mediator must have first established a representative relationship with an adverse party in the same matter in which the first confidential relationship arose, or in a matter that is substantially related to the previously mediated case.”

The pleadings in both the mediated case and the present case, he noted, “allege causes of action for failure to pay required wages and overtime compensation in violation of Labor Code section 1194, failure to comply with the record-keeping requirements of Labor Code section 226, and unfair competition in violation of Business and Professions Code section 17200, et seq.”

That meets the substantial relationship test, he said.

The case is Nevarez v. Foster Farms, F070316.


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