Doe v. Superior Court, No. D075331 (D4d1 Jun. 13, 2019)
The case deals with the no-contact rule, recently re-codified as Rule of Professional Conduct 4.2. Plaintiff is suing a College for sexual harassment. There’s another College Employee who was allegedly similarly harassed. Plaintiff’s Attorney reaches out to Employee #2 prior to her deposition. When the College learns about the contact, it moves to DQ Plaintiff’s Attorney under Rule 4.2. College argues that because Employee #2 was a College employee, Attorney made improper ex parte contact with a party represented in the litigation. The trial court granted the motion.
But that’s not right, and the Court of Appeal grants a writ.
Rule 4.2 does bar contact with every one of an organizational litigant’s employees. Instead, Rule 4.2(b)(2) limits employee contacts to when “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.” Employee #2 doesn’t meet that test—nobody is putting her in a position to make admissions that bind the College or claiming College will be vicariously liable for her acts.
To the contrary, she is a witness to potential sexual harassment by other employees of the Employer. The fact that Employee #2’s testimony could lead to liability for the College is not the same thing as the College being held vicariously liable based on Employee #2’s conduct. Only the latter falls within Rule 4.2. As the Court explains, “[t]he 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.”
Writ granted.
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