Friday, June 14, 2019
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Court of Appeal:
Lawyer’s Contact With Witness Who Was Employee Of Government-Defendant Was Not Unethical
Writ Issued Countermanding Disqualification of Counsel
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday lifted the disqualification of an attorney for a woman suing a school district for sexual harassment and a sexual assault, holding that the lawyer’s contact with a witness who was an employee of the district did not violate professional ethics.
The vindicated lawyer is Manuel Corrales Jr. of San Diego. He represents “Jane Doe,” a student at Southwestern College and an employee of its campus police department. Her action is against the Southwestern Community College District and three of its employees.
San Diego Superior Court Judge Eddie C. Sturgeon disqualified Corrales based on his having contacted “Andrea P,” a district employee who is alleged in the complaint to have been a victim of the sort of indignities of which Doe complained. A writ of mandate was issued directing that Sturgeon’s order be vacated.
Presumed Relevance
Justice William S. Dato said that mention of Andrea P and another alleged victim “was presumably relevant to Doe’s allegations because it provided notice to the District regarding similar misconduct by at least one of the involved employees, campus police officer Ricardo Suarez.”
Suarez was Doe’s supervisor who purportedly made unwelcome sexual comments to her.
The district moved for a disqualification of Corrales, asserting that he breached Rule 4.2 of the California State Bar Rules of Professional Conduct, barring communication by a lawyer with “a person the lawyer knows to be represented by another lawyer in the matter.”
Dato pointed out that the rule bars communication with “[a] current employee, member, agent, or other constituent of the 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.”
Interviewing Witness
He wrote:
“In this case, Corrales contacted Andrea to discuss evidence of other alleged acts of sexual harassment by Suarez. Her role was as a percipient witness. To the extent her acts were discussed, Doe is not seeking to hold the District liable for what Andrea did. If she reported acts of sexual harassment to the District, Doe would seek to impose liability for what the District did not do in response. Likewise, if Andrea did not report the harassment, it might be evidence that the District’s sexual harassment policies were inadequate. The purpose of Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable. It is not designed to prevent a plaintiffs lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.”
Dato went on to say:
“The purpose of the Rule is not to wall off every employee with firsthand knowledge of the relevant facts and prevent them from being asked questions.”
The case is Doe v. Superior Court, D075331.
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