Opinion
In this action brought under the False Claims Act (Gov. Code, § 12650 et seq.),
The individual plaintiffs challenge the injunction, arguing it is unsupported by the State Bar Rules of Professional Conduct barring ex parte communication with represented parties (Rules Prof. Conduct, rule 2-100),
I. Background
We described the background of this case in our opinion in a prior appeal: “Plaintiffs [William] Padilla and [Manuel] Contreras are former Laidlaw
“In July 2008, plaintiffs filed their second amended and operative complaint (Complaint), seeking damages and civil penalties on behalf of [SFUSD] for false claims, records, and statements presented by Laidlaw in violation of the [False Claims Act], (§ 12651, subds. (a)(1), (2) & (7).) Plaintiffs also sought for themselves an award of a portion of the damages and penalties, as well as payment of their attorney fees, expenses, and costs of suit.
“According to the Complaint, Laidlaw has for a number of years provided bus transportation services under a series of contracts with [SFUSD]. The Complaint describes certain requirements imposed on Laidlaw in the contract effective between August 16, 2005, and August 15, 2010 (Contract). Those requirements include provisions that Laidlaw: (1) provide school buses meeting state and federal standards relating to pupil transportation; (2) maintain its buses in ‘ “excellent mechanical condition and appearance” ’ and replace all vehicles ‘ “which are deemed to be unfit for providing the required service” ’; (3) maintain an extra 10 percent of each type of bus as a spare fleet; (4) provide buses meeting or exceeding specified state and federal safety standards; (5) provide buses meeting a specified particulate matter emissions standard or equipped with a specified emission control device and diesel buses with a ‘ “closed crankcase emission control system” ’; (6) not authorize ‘ “overnight park-out” ’ of any buses without prior authorization; and (7) employ a ‘ “Fleet Maintenance Supervisor” ’ to ‘ “establish and maintain a complete and effective preventative maintenance program with complete and accurate records on each vehicle.” ’ Each of those provisions is a material term of the Contract. [SFUSD] agreed to provide payment on a monthly basis ‘for services satisfactorily performed by [Laidlaw] after receipt of properly documented invoices.’
“The Complaint further alleges that ‘Laidlaw has been in breach of one or more of these material terms throughout the term of the Contract and at the time Laidlaw has presented invoices, claims or demands for payment to [SFUSD].’ The Complaint contains numerous specific allegations describing how the buses utilized by Laidlaw were in inadequate and/or unsafe operating condition and failed to meet the pollution control requirements in the Contract. . . .
In SFUSD, we reversed a trial court order sustaining a demurrer to the first cause of action and a subsequent dismissal. (SFUSD, supra, 182 Cal.App.4th at pp. 444, fn. 6, 458.) In this February 2010 opinion, we held that Laidlaw’s submission of invoices to SFUSD impliedly certified that Laidlaw had complied with express and material contract terms. (Id. at p. 442.) The allegations that it submitted those invoices knowing it had not complied with those express and material contract terms, therefore, stated a cause of action for filing a false claim for payment in violation of section 12651, subdivision (a)(1). (SFUSD, at pp. 442, 458.) On remand, FSI answered the complaint as a successor in interest to Laidlaw.
A. First Application for Preliminary Injunction
On June 1, 2011, Alise M. Cappel (an Environmental Law Foundation (ELF)) investigator who was testifying as ELF’s person most qualified to testify on certain subjects) stated at her deposition that, in 2010 and 2011, she had interviewed certain then current FSI employees about the False Claims Act matter. On the advice of counsel, who raised a work product privilege objection, she declined to identify those employees. ELF later responded to FSI discovery requests with a list of 67 FSI employees who might have knowledge relevant to the lawsuit.
In a letter to plaintiffs’ counsel dated June 7, 2011, FSI’s attorneys “demand[ed] that ELF, its employees and counsel, as well as counsel for the other qui tarn plaintiffs, immediately cease and refrain from communicating with [FSI’s] employees. Pursuant to Rule 2-100 . . . , [FSI’s] employees may not be interviewed without the consent of counsel.”
On July 19, 2011, FSI applied ex parte for a temporary restraining order and order to show cause regarding issuance of a preliminary injunction prohibiting ELF and its attorney from communicating with FSI employees outside the presence of FSI’s attorneys or using any information it had obtained in such communications. The court issued the temporary restraining order, ordered briefing, and set a hearing for August 2.
Both sides submitted sworn declarations. In a July 14, 2011 declaration, drafted during a meeting with FSI’s counsel, FSI mechanic Mahendra Lai
Contreras, in a July 24, 2011 declaration, averred that he remained on friendly terms with many current FSI employees and that the subject of work often came up in their conversations, including employees’ complaints about the company. Contreras called Lai in early 2011 and they spoke about work. Because Lai “seemed to think the company could be doing a better job,” Contreras asked if Lai wanted to talk to his lawyer and Lai said he did. Lai met with Wheaton, Cappel, Padilla and Contreras at a San Bruno restaurant. Just before the meeting started, Lai joked with Contreras that he should hide so no one from the company would see him.
Wheaton averred that either Contreras or Padilla invited him to meet with Lai in or about March 2011. They met at a San Bruno restaurant and Cappel, Contreras and Padilla were present. Wheaton asked Lai if he had an attorney, and Lai said he did not and did not feel he needed one. Wheaton asked if Lai had spoken to management about getting permission to speak to him, and Lai said he did not and he would not because he feared retaliation. Wheaton asked Lai about his job duties to determine if he was a management employee and concluded that he was not. Wheaton told Lai that the False Claims Act provided some protection if Lai suffered retaliation for providing information and that Lai could contact him if he suffered any adverse action. Wheaton also told Lai the Proposition 65 lawsuit had settled but was still
Regarding Cappel’s interviews with FSI employees other than Lai, Wheaton averred that he “instructed Ms. Cappel to start every conversation with an employee . . . with an inquiry into whether the individual had any managerial responsibilities or authority for company policies. If the answer was anything other than an unequivocal no the interview had to be terminated. [Otherwise], employees could be interviewed about what they saw, heard or were told to do, but not about anything they had done that could be wrong. This latter instruction was both to follow [rule 2-100] and also to prevent any possibility that an employee was—or felt they were—being asked to admit any personal wrongdoing.” Cappel confirmed that Wheaton had instructed her not to ask employees whether they had personally done anything wrong.
Padilla’s and Cappel’s declarations about the meeting with Lai were similar to Wheaton’s. Both Contreras and Padilla, who each had known and worked with Lai for years, averred that Lai was forthcoming during the meeting and did not appear to be uncomfortable.
Contreras averred that, in mid-July 2011, Lai left him a phone message asking him to call. When they spoke, Lai said he had been pulled into a meeting at work with an FSI lawyer and asked to sign a paper, which he signed without reading it. Sometime later, Lai called him again and “expressed his frustration that [Contreras] had placed him in ‘the middle of this shit.’ ”
In a reply declaration filed August 2, 2011, Lai denied that he told Contreras he was forced to sign a declaration. Lai spoke to Contreras on the phone in July 2011 before his July 14 meeting with FSI’s attorney and before
FSI argued that ELF and its attorneys violated rule 2-100
Plaintiffs denied that they or their attorneys had violated rule 2-100. “[T]he evidence confirms that none of the employees interviewed by ELF were asked about their own actions. Rather, they were asked about their observations as percipient witnesses. This is precisely the type of questioning that is permitted under Rule 2-100.” They argued “the False Claims Act . . . clearly contemplates that a defendant’s employees may provide information to Plaintiffs’ counsel during the course of counsel’s investigation.” Plaintiffs also challenged the credibility of Lai’s declarations in light of four contrary plaintiff-side declarations and evidence that Lai apparently feared employer retaliation, thus giving him a motive to inaccurately describe the meeting. Plaintiffs’ counsel further argued injunctive relief was unnecessary because
At the August 2, 2011 hearing, the court (Hon. Loretta M. Giorgi) made no specific credibility findings, but said, “While I understand it’s important for plaintiffs to try to put together their case, . . . declarations I have been reading have raised real issues of concern of whether or not it has crossed a line. I don’t think it has quite yet crossed it, but it has certainly gotten there in terms of communication with a represented party, [f] . . . [M]y inclination ... is to grant this in part and to . . . come up with some type of protocol that you guys need to follow in order to interview witnesses in the future that happen to be employees of the corporation.” The court added, “both sides are behaving badly, quite honestly. ... [|] I’m not going to issue the preliminary injunction, but I’m going to hold [plaintiffs to their] representation to this court [that they would not contact any more FSI employees]. [][]... [f] . . . You’ve got to be careful when you’re talking to their employees. . . . [I]n part, for the employee’s sake, [f] Everyone has now put this poor gentleman in a very difficult position. And whether or not he was actually lied to, we don’t know, but he feels he has been put in a difficult position. . . . [f] . . . HO . . . And I am also concerned that he feels pressured that he is going to lose his job if he doesn’t file or sign declarations to that effect. So everyone needs to lay off this man at this point.”
FSI’s counsel expressed concern that Contreras or Padilla, whom he characterized as “instruments of counsel,” telephoned Lai after the temporary restraining order was issued. The court said, “I don’t want [the individual plaintiffs] contacting other employees and getting them involved at this point. . .. [T]his needs to be conducted between the lawyers. Discovery needs to be conducted per the rules of discovery.” Plaintiffs’ counsel noted that Contreras and Padilla knew many FSI employees and frequently encountered them, and the court clarified that they were free to talk to those employees about any subject other than the lawsuit. “And if the people they talk to bring it up ... [H ... [][].. . they should just say talk to the lawyers, [f] . . . [f] . . . [T]hey can’t be out soliciting folks to give information or anything of that sort. They shouldn’t have any discussion. That taints your witness.”
An August 2, 2011 minute order stated, “Argued and the court rules as follows: motion for preliminary injunction is denied without prejudice. Attorneys are to conduct discovery pursuant to the discovery rules. Parties are to be instructed not to talk about the lawsuit with employees,”
On December 27, 2011, FSI filed a second motion for a preliminary injunction. The following evidence was presented in relation to the motion.
On October 4, 2011, plaintiffs’ attorney Thomas Sims informed FSI’s counsel that he wanted to depose David Herró, an FSI employee who was out on workers’ compensation leave. FSI counsel Jesse L. Miller responded that Herró had refused to talk to FSI when FSI contacted him about the case and had referred FSI to his workers’ compensation lawyer, Ralph Mann. Miller had tried to contact Mann but was unsuccessful. On October 24, Miller’s office gave Sims contact information for Mann so he could try to contact Mann himself.
On November 11, 2011, Sims finally made contact with Mann and, at Mann’s request, arranged to depose Herró in Mann’s office so Mann would be available if any workers’ compensation issues came up during the deposition. Sims informed FSI’s counsel of this development. On November 29, Mann’s office informed Sims that they were available for the deposition on December 16. At Sims’s request, they agreed to check whether Herró was available on that date. Sims informed FSI’s counsel of the deposition date.
On December 1, 2011, Mann’s office informed Sims that Herró wanted to speak with him. Mann’s office e-mailed Sims the phone number for Herró and asked Sims to confirm with Herró that he was available on December 16, the tentative deposition date. Sims replied by e-mail: “As I explained to Mr. Mann previously, I am the attorney for three plaintiffs, who are suing Mr. Herró’s employer, [FSI], and we have asked to take Mr. Herró’s deposition. I understand from our conversation yesterday that Mr. Herró would like me to call him regarding his deposition. If that’s not correct, please let me know.” Mann’s assistant replied by e-mail: “You are correct[.] Mr. Herró does want you to call hi[m] directly to set his deposition. . . . Please let me know once you have confirmed the depo date [which had changed to December 19 at the request of FSI’s counsel] so I [can] add it to Ralph Mann’s calendar.” Printouts of these e-mails are in the record.
Sims averred that he called Herró on December 6, 2011. The record contains a screenshot from Sims’s smartphone that appears to corroborate the date and time of the call. Sims averred that he spoke to Herró only on that occasion. “In that conversation I confirmed that Mr. Herró was available on December 19, 2011 for a deposition and explained that he would be served
Herró averred that he received a phone call from Sims “on or about” November 29, 2011,
On December 15, 2011, Miller asked Sims if he had contacted Herró. Sims acknowledged the call and reported that he had also sent Herró a binder of documents. He argued the contact was permissible because Mann had given him permission to speak to Herró and because they discussed only the logistics of Herró’s deposition and not the substance of the case. Miller disagreed and informed Sims he intended to present the matter to the court on an expedited basis. Miller said, “I want to reiterate that I represent Herró.”
On December 19, 2011, Miller called Sims and asked if Contreras had called Herró to discuss the lawsuit. Sims acknowledged that Contreras had called Herró on December 15, but claimed that Judge Giorgi’s order did not prohibit Contreras from contacting current employees.
In its motion for injunctive relief, FSI argued that Sims and Contreras had violated Judge Giorgi’s admonishment not to contact current FSI employees. FSI further argued that Mann could not grant Sims leave to speak to Herró about this lawsuit because “[i]t is not the workers compensation attorney’s position to waive [FSI’s] right to keep its employees free from ex parte
Plaintiffs argued there had been no violation of Judge Giorgi’s orders. They represented in their briefs that Contreras had merely left a message for Herró and that he had done so for a purpose unrelated to the lawsuit. Nevertheless, they argued that the individual plaintiffs could contact current FSI employees without violating rule 2-100 as long as they did so on their own initiative and not under the direction of counsel. They also asserted that an order preventing plaintiffs’ counsel from talking to a current FSI employee like Herró who “requested to speak with me of his own accord, with no prompting from the plaintiffs, ... or from plaintiffs’ counsel, . . . would be a violation both of [the employee’s] rights and of the Government Code section . . . wherein an employee . . . should be entitled to voluntarily provide information in furtherance of a False Claims case.” They argued that Judge Giorgi’s order, which directed Contreras and Padilla to refer any employees who wanted to talk about the lawsuit to plaintiffs’ counsel, had implied that counsel was free to talk to such employees at the employees’ own request.
The court (Hon. Ernest H. Goldsmith) expressed particular concern about Contreras’s phone call to Herró. “[T]herein lies the biggest problem. . . . They aren’t lawyers. How are they going to know the subtleties, what they can do and not do? [f] . . . [T]hey’re in a lawsuit and it’s uppermost in their minds, it’s the biggest thing in their life, ... I think that that is what ought to be foreclosed ...[][]... [][] . . . because that’s solicitation.” The court ordered the individual plaintiffs not to discuss the lawsuit with current employees and to refer any employees who wanted to discuss the case to plaintiffs’ counsel.
The court acknowledged a countervailing concern that FSI employees’ statutory right to provide information on False Claims Act matters be
The court’s written order, filed on January 6, 2012, states:
“1. Plaintiffs’ counsel, and all agents and affiliates of Plaintiffs’ counsel, are to refrain from all manner of ex parte communications with current [FSI] employees during the pendency of this lawsuit. If Plaintiffs’ counsel, or their agents or affiliates, want to speak with current [FSI] employees, they must do so through depositions. However, in the event a current [FSI] employee voluntarily initiates contact with Plaintiffs’ counsel, then Plaintiffs’ counsel may communicate with the employee on an ex parte basis. In this situation, before discussing any substantive matters with the employee, Plaintiffs’ counsel must first notify [FSI’s] counsel that the ex parte contact occurred.
“2. Plaintiffs Manuel Contreras and William Padilla are to refrain from discussing this case, or any subjects related to this case, with current [FSI] employees during the pendency of this lawsuit. Neither Mr. Contreras nor Mr. Padilla may contact [FSI] employees and solicit [FSI] employees to contact Plaintiffs’ counsel. If a [FSI] employee voluntarily initiates contact with Mr. Contreras or Mr. Padilla and begins to discuss this case, or any subjects related to this case, then Mr. Contreras or Mr. Padilla are to tell the employee that they cannot discuss this case but that the employee can contact Plaintiffs’ counsel, and then Mr. Contreras and Mr. Padilla shall have no further discussions regarding the case with the employee.
“3. [ELF] (including all members, officers, directors, principals and employees of [ELF]) shall not communicate with current [FSI] employees. If a [FSI] employee voluntarily initiates contact with ELF, then ELF is to tell the employee that they may contact Plaintiffs’ outside counsel, and then ELF shall have no further contact with the employee.”
II. Discussion
Plaintiffs challenge only paragraph 2 of the January 2012 order, which bars the individual plaintiffs from discussing the lawsuit with current FSI employees. They argue the order is unsupported by any evidence that either plaintiffs or plaintiffs’ counsel violated rule 2-100, that it violates the policies underlying the False Claims Act, and that it infringes the free speech rights of the individual plaintiffs.
A. Standard for Injunctions
In the trial court and on appeal, the parties have characterized FSI’s injunctive relief request as an application for a “preliminary injunction.” However, preliminary injunctions are issued to preserve the status quo pending a trial on the merits of the action. (Paradise Hills Associates v. Procel (1991)
We therefore construe the order as an exercise of the court’s inherent power to control the proceedings before it. (See Code Civ. Proc., § 128; Rutherford v. Owens-Illinois, Inc. (1997)
We review orders issued pursuant to the court’s inherent powers for abuse of discretion. (Continental Insurance, supra,
In cases that raise plausible First Amendment concerns, a reviewing court should make an independent examination of the supporting record to ensure that the speakers’ free speech rights have not been infringed by the trier of fact’s determination that the communication at issue was unlawful. (In re George T. (2004)
B. Propriety of Injunction
FSI urged the court to impose the challenged injunction based on an alleged violation of Judge Giorgi’s August 2, 2011 orders. Although Judge
Judge Goldsmith did not clearly state whether he issued the January 2012 order based on a violation of Judge Giorgi’s orders or a violation of rule 2-100. He noted that he had reviewed the papers filed in relation to Judge Giorgi’s orders (i.e., the evidence on which those orders were based). Judge Goldsmith also said, “I believe I should give deference to Judge Giorgi’s position in this matter,” and he questioned whether Contreras’s call to Herró was a violation of Judge Giorgi’s order that the individual plaintiffs should have only social contacts with FSI employees. “Mr. Contreras called one of these people and left a message. ... [][].. . There’s a difference between calling and running into somebody at the Safeway. [|] And I think there’s a strong implication that Mr. Contreras sought to discuss this case with the witness ...” The court further implied that this conduct by Contreras violated plaintiffs’ counsel’s representations to Judge Giorgi that they did not intend to interview any more FSI employees. “[Wjhen you say ‘We won’t do something,’ that means them, too, they’re plaintiffs.” On the other hand, Judge Goldsmith, in denying FSI’s request for sanctions, said “I’m not going to rule whether there’s a violation or no violation. . . . [f] The order—there were orders from—I believe there were orders by—Judge Giorgi. I believe there was sufficient evidence to warrant an injunction; however, I think that sanctions would require a set of findings that would best not be made, so I’m going to deny it.”
In light of the ambiguity of the court’s comments, we will consider whether the court’s January 2012 order was justified based on evidence of either a violation of Judge Giorgi’s prior orders or an independent violation of rule 2-100. The violation of a court order cannot justify issuance of an injunction as a sanction unless the underlying court order was lawful. (See Conservatorship of Becerra (2009)
It is possible that plaintiffs’ counsel’s interview of Lai in March 2011 violated rule 2-100. Significantly, however, Judge Giorgi expressly declined to find that such a violation had occurred. Even more significantly, there is no evidence in the record that plaintiffs’ counsel in any way directed the individual plaintiffs to contact FSI employees on their behalf in a manner that violated rule 2-100, and contacts with FSI employees by the individual plaintiffs on their own initiative are clearly exempt from the proscriptions of rule 2-100. Because there has been no finding of a rule violation by plaintiffs’ counsel and there is no evidence that plaintiffs’ counsel indirectly violated the rule by instructing the individual plaintiffs to communicate with FSI employees on counsel’s behalf, we conclude paragraph 2 of the January 2012 order is not supported by evidence of rule 2-100 violations. We further conclude the order is not supported by evidence of witness tampering. Accordingly, we vacate the injunction as it applies to the individual plaintiffs.
1. Rule 2-100
Rule 2-100 provides: “(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
“(B) For purposes of this rule, a ‘party’ includes:
“(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or
“(2) An association member or an employee of an association, corporation, or partnership, 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 or whose statement may constitute an admission on the part of the organization.
“(C) This rule shall not prohibit:
“(1) Communications with a public officer, board, committee, or body; or
“(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or
“(3) Communications otherwise authorized by law.”
“[Rule 2-100] is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice .... It shields the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided, [f] The rule was designed to permit an attorney to function adequately in his [or her] proper role and to prevent the opposing attorney from impeding his [or her] performance in such role. If a party’s counsel is present when an opposing attorney communicates with a party, counsel can easily correct any element of error in the communication or correct the effect of the communication by calling attention to counteracting elements which may exist.” (Mitton v. State Bar (1969)
“ ‘[A] bright line test is essential. As a practical matter, an attorney must be able to determine beforehand whether particular conduct is permissible; otherwise, an attorney would be uncertain whether the rules had been violated until ... he or she is disqualified. Unclear rules risk blunting an advocate’s zealous representation of a client.’ [Citation.] Further, rule 2-100 must be interpreted narrowly because ‘a rule whose violation could result in disqualification and possible disciplinary action should be narrowly construed when it impinges upon a lawyer’s duty of zealous representation.’ [Citation.]” (Snider v. Superior Court (2003)
When a trial court finds a violation of rule 2-100, its remedial powers are limited to ameliorating effects of the violation on the proceeding before it. “[T]he propriety of punishment for violation of the Rules of Professional Conduct is a matter within the purview of the State Bar, not of a court presiding over the affected case. (See Bus. & Prof. Code, § 6077; Noble v. Sears, Roebuck & Co. (1973)
The threshold question in determining whether there was evidence before the trial court of rule 2-100 violations is whether the FSI employees at issue—Lai and Herró
FSI does not contend that Lai or Herró qualified as a “party” under subdivision (B)(1) of rule 2-100 or the “statement” clause of subdivision (B)(2). Under rule 2-100(B)(l), a corporate employee is a party if he or she is an “officer, director, or managing agent.” Snider holds that a “managing agent” within the meaning of this rule is an employee who “exercises substantial discretionary authority over organizational policy.” (Snider, supra,
The key' issue, therefore, is whether Lai or Herró were parties under the acts or omissions clause of subdivision (B)(2) of rule 2-100. This clause proscribes ex parte contacts with an employee of a represented corporation “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.” We are not aware of any California decision that construes this language. California courts have construed other terms in rule 2-100 by reference to California tort and evidence law. (See Snider, supra, 113 Cal.App.4th at pp. 1207-1210 [construing “managing agents” in rule 2-100(B)(l) and binding “admissions” in rule 2-100(B)(2) according to Cal. tort and evidence law]; see also ABA Com. on Prof. Ethics, formal opn. No. 91-359 (1991) [“[w]hether an employee falls into any of the[] three categories [of the rule] is inevitably an issue affected by a host of factors, . . . [which] include at least the terms of the relevant statutory and common law of the state of the corporation’s incorporation”].) It is well established under California tort law that the conduct of an employee acting within the scope of his employment is imputed to the employer under the doctrine of respondeat superior. (Miller v. Stouffer (1992)
Applying this standard to the evidence, we conclude Lai was potentially a party within the meaning of rule 2-100. Lai worked for FSI as a bus mechanic and the subject matter of the lawsuit was FSI’s allegedly inadequate repair and maintenance of its buses. Thus, if the subject matter of a communication with Lai was his acts or omissions while working as an FSI bus mechanic, the communication might well have been prohibited by rule 2-100. Given that Herró stated that he also was a mechanic for Laidlaw/FSI, we shall assume for purposes of argument that he was a potential party for these same reasons.
b. Contacts by Plaintiffs’ Counsel
Rule 2-100 is violated only if an attorney communicates with an employee of the opposing corporate party about acts or omissions of the employee that might be imputed to the corporation. There is conflicting evidence in the record about whether plaintiffs’ counsel asked Lai if he had “done anything wrong himself’ regarding bus maintenance and repair at Laidlaw/FSI. Plaintiffs insist that their counsel followed a strict protocol precisely to avoid asking questions about Lai’s and other FSI employees’ personal acts or omissions.
c. Contacts by Individual Plaintiffs
Case law and other legal authority clearly establish that the individual plaintiffs’ contacts with FSI employees violated rule 2-100 only if the contacts were wrongfully orchestrated by plaintiffs’ counsel. Because there is no evidence of such wrongful involvement by the attorneys, we conclude there is no evidence of rule 2-100 violations carried out by the individual plaintiffs.
Rule 2-100 applies only to members of the California Bar, i.e., attorneys. It does not prevent parties from speaking to other parties about the lawsuit in the absence of and without the consent of counsel. (Snider, supra,
If plaintiffs’ counsel used Contreras to indirectly communicate with FSI employees in violation of rule 2-100, the communications violated the rule. Rule 2-100(A) expressly prohibits attorneys from “communicating] . . .
Paragraph 2 of the rule 2-100 discussion expressly provides that “nothing in the rule prevents a member from advising the client that [direct] communication [with a represented opposing party] can be made.” Several courts and bar association ethics committees have concluded further that attorneys may actively advise their clients regarding such communications as long as the attorney does not overreach in light of the purposes underlying the rule.
The State Bar Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 1993-131 (1993) (Opinion No. 1993-131), states that attorneys “need not discourage clients from direct communication with one another” and “[information obtained by a client from an opposing party represented by counsel where there has been no prohibited direct or indirect communication under rule 2-100 may properly be communicated by the client to the attorney and used by the attorney as is otherwise appropriate. [][]... [f] [On the other hand,] [w]hen the content of the communication to be had with the opposing party originates with or is directed by the attorney, [the communication] is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence, or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney. ...[][] An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party words or thoughts originating with the attorney.” In general, “counsel should be guided by the overriding purpose of rule .2-100, which is to prohibit one side to a dispute from obtaining an unfair advantage over the other side as a result of having ex-parte access to a represented party.” (Opn. No. 1993-131.)
Similarly, the American Bar Association (ABA) Committee on Ethics and Professional Responsibility, Formal Ethics Opinion No. 11-461 (2011) (ABA Opinion No. 11-461) states, “Even though parties to a matter are represented by counsel, they have the right to communicate directly with each other. ... A client may ask the lawyer for advice on whether the client may lawfully communicate directly with a represented person without their lawyer’s consent or their lawyer being present. The comments to [ABA Model Rules of Professional Conduct,] Rules 4.2 and 8.4(a) state that
Case law from other jurisdictions supports the view that an attorney crosses the line in advising a client about such communications when the attorney prepares binding legal documents that the client plans to ask the opposing party to sign. (See Holdren, supra, 13 F.Supp.2d at pp. 1195-1196 [attorney violated rule when he instructed client how to draft a binding affidavit as distinct from a hearsay witness statement and encouraged client to obtain affidavits from corporate defendant’s employees]; In re Marietta (1977)
Here, there is no evidence that plaintiffs’ attorneys overreached. There was no evidence that plaintiffs were acting at the behest of counsel, or that plaintiffs’ counsel coached the individual plaintiffs in any way regarding communications with FSI employees, except to inform them they had the right to engage in such communications. Indeed, the record does not disclose that plaintiffs’ attorneys were even aware that Contreras planned to contact Lai or Herró before the contacts occurred. Although the timing of Contreras’s call to Herró (shortly after FSI’s counsel had confronted Sims about his contacts with Herró and shortly before Herró’s scheduled deposition) may be suspect, we do not believe this record can support an inference that plaintiffs’ counsel was improperly involved in directing that call, and the trial court made no such finding.
In sum, the individual plaintiffs’ communications with FSI employees did not violate rule 2-100 if the communications were not improperly directed by plaintiffs’ counsel, and there is no substantial evidence that the communications were improperly directed by counsel. Indeed, there is no finding that plaintiffs’ counsel violated rule 2-100 in any manner, including by their direct communications with FSI employees. On this record, we conclude rule 2-100 provides no basis for paragraph 2 of the January 2012 order.
d. Additional Factors Supporting Reversal of the Order
We believe that reversal is also required by the policies reflected in the False Claim Act’s prohibition against employer interference with employee communications in support of a False Claims Act action and that free speech principles raise serious concerns about the order’s constitutionality.
Paragraph 1 of the rule 2-100 discussion states, “Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule. There are a number of express statutory schemes which authorize communications between a member and person who would otherwise be subject to this rule. These statutes protect a variety of other rights
Paragraph 2 of the January 2012 order also implicates the individual plaintiffs’ First Amendment rights.
2. Witness Tampering
As noted in our statement of facts, the trial court expressed concern that the individual plaintiffs or plaintiffs’ counsel might be intentionally tampering with witnesses by contacting FSI employees or, alternatively, that their unsolicited contacts with the employees—which were inevitably followed by concerned inquiries on the part of FSI counsel—were placing these potential witnesses in difficult and uncomfortable circumstances. FSI raises these concerns in defense of the order, but cites no legal authority that would support the order on this rationale. Nor did the trial court cite any such legal authority.
There was no evidence presented suggesting that the individual plaintiffs attempted to coerce or intimidate potential witnesses, or that they attempted to improperly influence any FSI employee to testify in a particular manner.
C. Motion to Dismiss
In July 2012, FSI asked us to dismiss this appeal based on plaintiffs’ alleged violation of the January 2012 order. FSI invokes the disentitlement doctrine, which permits dismissal of an appeal when the appellant is in willful disobedience of the trial court order appealed from. (Guardianship of Melissa W. (2002)
“Appellate disentitlement ... is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . .” (People v. Puluc-Sique (2010)
Paragraph 2 of the trial court order filed January 6, 2012, is vacated. FSI shall pay the individual plaintiffs’ costs on appeal.
Jones, P. J., and Simons, J., concurred.
Notes
All statutory references are to the Government Code unless otherwise indicated.
All rule references are to the State Bar Rules of Professional Conduct unless otherwise indicated.
Contreras’s July 2011 deposition testimony on his contacts with Lai was substantially similar to his declaration.
“While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” (Rule 2-100(A).) A “party” is defined to include “(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or [f] (2) An association member or an employee of an association, corporation, or partnership, 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 or whose statement may constitute an admission on the part of the organization.” (Rule 2-100(B).)
On August 3, 2011, the court (Judge Giorgi) ruled that ELF did not have to disclose which FSI employees it had interviewed.
On September 15, 2011, the court (Hon. Ernest H. Goldsmith) denied ELF’s motion to quash a notice of deposition for Wheaton, an ELF officer and a lawyer for plaintiffs, on issues
At the January 4, 2012 hearing, Sims explained that he took the initiative on this matter because he had been informed that Herró did not want to speak to FSI’s counsel and he knew Mann would not be able to answer Herró’s questions about the scope of the deposition.
Herró’s declaration was typed with a blank for the date of the phone call with Sims and the November 29 date was handwritten in the blank and initialed by Herró.
At the January 4, 2012 hearing, FSI further disputed Sims’s assertion that Herró initially approached him. FSI’s counsel represented to the court that it could present a declaration by Herró that Sims initiated the contact and Herró never asked to speak to Sims and did not want plaintiffs or plaintiffs’ counsel to contact him in the future.
As we discuss further post, then operative section 12653, subdivision (a) provided that “No employer shall make, adopt, or enforce any mle, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency or from acting in furtherance of a false claims action, including investigating, initiating, testifying, or assisting in an action filed or to be filed under Section 12652.”
In Triple A Machine Shop, Inc. v. State of California (1989)
Similarly, a case repeatedly cited by FSI, Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003)
We note that the minute order is directed to the attorneys, and not to the parties.
Little information appears in the record about Cappel’s communications with FSI employees other than Lai, or the identity of those employees. It is the documented communications with Lai which formed the primary evidentiary foundation for FSI’s motion for injunctive relief.
We observe, however, that California courts have held that attorneys should resolve doubts about whether communications violate the rule by avoiding suspect communications and seeking court guidance. (See Abeles v. State Bar (1973)
Federal courts have found no violation of rules analogous to rale 2-100 where an employer directly negotiated settlements of pending employment discrimination claims with represented employees without their counsel’s consent (Dorsey v. Home Depot U.S.A., Inc. (D.Md. 2003)
We note that FSI focuses on Contreras’s communications with FSI employees as examples of alleged rale 2-100 violations by the individual plaintiffs. As to Padilla, the only evidence of communications with FSI employees is his attendance at the Wheaton meeting with Lai and his receipt of a litigation-related photograph from another FSI employee. Our analysis of Contreras’s conduct applies equally to this evidence.
“Some authority states that ... a lawyer may not ‘script’ or ‘mastermind’ a client’s communication with a represented person and may violate [ABA Model Rules of Professional Conduct,] Rule 4.2 by preparing legal documents for the client to have a represented person sign without the assistance of their counsel. . . . [S]uch a standard, if too stringently applied, would unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client. ... [10 ... H] The lawyer also may draft a document for the client to deliver to the represented adversary although authority restricts the lawyer’s assistance to situations where the client originates the communication, stating that it is improper for the lawyer to originate or direct the proposed communication. . . . Such an approach favors only those clients who have the sophistication to ask the lawyer to draft a document.... [ID This Committee favors the approach taken by Restatement [(Third) of the Law Governing Lawyers (2000) section] 99 Comment (k). Under that approach,... the lawyer may review, redraft and approve a letter or a set of talking points that the client has drafted and wishes to use in her communications with her represented adversary. Such advice enables the client to communicate her points more articulately and accurately or to prevent the client from disadvantaging herself. The client also could request that the lawyer draft the basic terms of a proposed settlement agreement that she wishes to have with her adverse spouse, or to draft a formal agreement ready for execution.” (ABA Opn. No. 11-461.)
FSI argues plaintiffs forfeited their First Amendment argument because they did not raise it in the trial court. We need not resolve this issue because we hold the order must be reversed even disregarding First Amendment concerns because it is unsupported by rule 2-100 and it conflicts with the policies underlying the False Claims Act. In any event, we may exercise our discretion to decide a pure question of law raised for the first time on appeal. (Ward v. Taggart (1959)
We emphasize that we do not question the trial court’s authority to take action to prevent demonstrated or threatened abuse of the litigation process and to preserve the integrity of the judicial system. (Continental Insurance, supra, 32 Cal.App.4th at pp. 107-108.)