In this unpublished opinion, an attorney representing a former employee contacted a current worker of the same employer. He spoke with the worker for about half an hour about her conversations with both his client and with the attorneys representing the employer.
When the employer's attorneys found out about the communication they filed a motion to have the former worker's attorney removed from the case for unethical conduct in violation of the State Bar Rules.
The attorneys for the employer argued that since they represented the employer in the action, and since the employee with whom plaintiff's counsel communicated was still employed by the employer, then that worker was also represented by the employer's attorneys; thus, the opposing attorney had spoken directly to a represented party in violation of State Bar rules.
The appellate court didn't buy the argument and affirmed the trial court's refusal to remove or otherwise sanction the plaintiff's attorney. It said that, without a retainer agreement or any other facts supporting the actual personal representation of the worker (still employed by the employer), there was no showing that she was in fact represented by anyone.
And that the petition for removal of the attorney appeared to be more of a last-minute tactical strategy by the employer's attorneys rather than an unethical communication by plaintiff's counsel.
The Court noted that the employee with whom the attorney communicated was not a director or officer of the employer - and thus did not amount to a "party" - and was not represented by the employer's attorneys in any other matters but for her capacity as a witness in the instant matter.
As such, there was nothing wrong with the attorney for the plaintiff speaking directly with that worker.
The case is Knox v. Dynamic Nuirsing Home.
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