Attorneys

An Overview of Ethical Issues Before and During Trial

January 27, 2006
Nancy L. Fineman
As Part of a Presentation of the San Mateo County Bar Association, Annual MCLE Program, Funky Credit Day

A. RULES OF PROFESSIONAL CONDUCT

The professional conduct of attorneys is regulated by the courts, specifically the California Supreme Court. See e.g. California Constitution Article VI, § 1; Brydonjack v. State Bar (1929) 208 Cal. 439, 442; Business & Professions Code § 6100. As the United States Supreme Court explained nearly 150 years ago:

“[Attorneys] are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character… The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court… Their admission or their exclusion… is the exercise of a judicial power.”

Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 337 fn 6 quoting Ex Parte Garland (1866) 71 U.S. (4 Wall.) 333, 378-379.

There is a presumption that attorneys will behave ethically:

Attorneys are "member[s] of an ancient, honorable and deservingly honored profession." (People v. Mattson (1959) 51 Cal.2d 777, 793 [336 P.2d 937].) We call them "officers of the court." (Ibid.) Let's practice what we preach and treat them with the respect they have earned. As we recently stated in DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 834 [115 Cal.Rptr.2d 847], "the court should start with the presumption that, unless proven otherwise, lawyers will behave in an ethical manner."

Frazier v. Superior Court (2002) 97 Cal.App.4th 23, 26.

Beware, however of what can happen if you do not behave ethically. The failure to follow the Rules of Professional Conduct can expose you to civil liability because your failure to follow the rules can help prove breach of fiduciary duty. See Mirabito v. Liccardo (1992) 4 Cal.App.4th 41; David Welch v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 890-892; Day v. Rosenthal (1985) 170 Cal.App.3rd 1125, 1146-1149. Additionally, an attorney may not recover fees for services “rendered in contradiction to the requirements of professional responsibility.” Goldstein v. Lees (1975) 46 Cal.App.3rd 614, 618.

The California Rules of Professional Conduct (which can be found on the California State Bar website, www.calbar.ca.gov) contain ethics rules for attorneys. The Legislature also has the power to regulate attorneys, subject to the Supreme Court’s authority to review. Business & Professions Code §§ 6000 et. seq. contains the ethics rules enacted by the Legislature. Some local courts have their own ethics rules. See e.g. Santa Clara County Bar Association Code of Professionalism (1999).

Since the area of ethics is often problematic, the California State Bar has an Ethics Hotline to respond to attorneys’ ethical questions. The hotline is open Monday through Friday from 9:00 a.m. to 5:00 p.m. and the telephone number is (800) 238-4427.

B. ATTORNEYS’ DUTIES TO THE CLIENT

1. Duty to Inform

A lawyer has the duty to inform his or her client of all significant developments. California Rules of Professional Conduct, Rule 3-500 provides:

A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.

See also Business & Professions Code §§ 6068(m) (“It is the duty of an attorney to do all of the following: . . . (m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.”) This duty includes the duty to inform the client about settlement offers. California Rules of Professional Conduct at 3-510.

There are many ways to keep the client informed about development in the case. You must respond to all client contact (by telephone or mail) within a reasonable time. A good secretary or paralegal can often be the contact person for the client, but the attorney must also be involved in developing the client relationship. This relationship is necessary, not only because the rules require it, but because at trial, it is critical that the client trust the attorney. If no relationship has developed prior to trial, it will be difficult to develop a good relationship during trial.

All attorneys should send regular reports to the client about the status of the cases. If your reports state month after month that: “there are no significant developments in your case,” then you need to spend some time on the case to make something significant happen. You can also send a copy to the client of all correspondence that you send out, either by way of a cc (courtesy copy) or a bcc (blind courtesy copy).

2. Other Duties

The attorney also has other duties to the client, including:

a. No Representation of Adverse Interests

California Rules of Professional Conduct Rule 3-310 prohibits the attorney from representing adverse interests. You may be disqualified from a case if you (or other attorneys in your firm) represented another client adverse to your current client where there is a “substantial relationship” between the two representations. The conflict issue is especially acute in large firms, merged firms and when attorneys change firms. See e.g. Adams v. Aerojet (2001) 86 Cal.App.4th 1324, 1336-37. If an attorney is disqualified, then the entire firm is disqualified at least where an ethical screen has not been established.

In Flatt v. Superior Court (1994) 9 Cal.4th 275, 283, the California Supreme Court recognized the presumption that exists when a client seeks to disqualify a former lawyer in subsequent litigation. The court held: ‘[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a 'substantial relationship' between the subjects of the antecedent and current representations.’ (Ibid.) Once a substantial relationship exists, it is presumed that the lawyer who the former client seeks to be disqualified is in possession of confidential information pertinent to the present lawsuit and disqualification is mandatory. (Ibid.)

Neal v. Health Net (2002) 100 Cal.App.4th 831, 833.

For examples of cases applying the rule, see: Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 302-304, 308-315; Bell v. 20th Century Ins. Co. (1989) 212 Cal.App.3d 194, 198; Maruman Integrated Circuits, Inc. v. Consortium Co. (1985) 166 Cal.App.3d 443, 448; Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 592; see also Neal v. Health Net (2002) 100 Cal.App.4th 831, 833.

b. Relationships With Clients and Others

You also must watch relationships. Don’t fall fro your client– sexual relationships are generally prohibited by Rule 3-120. The discussion to the Rule provides:

Rule 3-120 is intended to prohibit sexual exploitation by a lawyer in the course of a professional representation. Often, based upon the nature of the underlying representation, a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and fidelity to clients. The relationship between an attorney and client is a fiduciary relationship of the very highest character and all dealings between an attorney and client that are beneficial to the attorney will be closely scrutinized with the utmost strictness for unfairness. In all client matters, a member is advised to keep clients' interests paramount in the course of the member's representation. (Citations omitted).

A lawyer must also be careful in entering into financial relationships with the client. Rule 3-300, “Avoiding Interests Adverse to a Client” provides:

A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and

(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and

(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

In class actions, there is a conflict of interest if a member of the law firm acting as class counsel because of the different interests the class representative and class counsel have. Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253.

You also cannot have a case where a family member is on the opposite side.
See Rule 3-320 which provides: “A member shall not represent a client in a matter
in which another party's lawyer is a spouse, parent, child, or sibling of the
member, lives with the member, is a client of the member, or has an intimate
personal relationship with the member, unless the member informs the client in
writing of the relationship.”

c. Lawyer As Witness

The rules also regulate your ability to be a witness for your client. See Rule 5-210 which provides in part: “A member shall not act as an advocate before a jury which will hear testimony from the member unless: (A) The testimony relates to an uncontested matter; or (B) The testimony relates to the nature and value of legal services rendered in the case; or (C) The member has the informed written consent of the client.”

Where a lawyer representing a party in trial is also a witness during the trial, his or her effectiveness, both as a lawyer and as a witness, may be impaired in the eyes of the fact finder. Such disadvantage enures to the detriment of the party being represented by the lawyer serving such a dual function. In Comden v. Superior Court (1978) 20 Cal.3d 906 [145 Cal.Rptr. 9, 576 P.2d 971, 5 A.L.R.4th 562], our Supreme Court upheld a trial court decision recusing an attorney solely on the basis that the attorney was a potential witness at the trial. (Id. at pp. 915-916.) However, that decision was based on former rule 2-111(A)(4) of the Rules of Professional Conduct, superseded in 1989, which, with exceptions not relevant here, declared that, if "a member of the State Bar knows or should know that he or a lawyer in his firm ought to be called as a witness on behalf of his client in litigation concerning the subject matter of such employment he shall withdraw from the conduct of the trial . . . ."

After the decision in Comden, former rule 2-111(A)(4) of the Rules of Professional Conduct was amended to provide, "If upon or after undertaking employment, a member of the State Bar knows or should know that the member ought to be called as a witness on behalf of the member's client in litigation concerning the subject matter of such employment, the member may continue employment only with the written consent of the client given after the client has been fully advised regarding the possible implications of such dual role as to the outcome of the client's cause and has had a reasonable opportunity to seek the advice of independent counsel on the matter." Based on this change, the court in Lyle v. Superior Court (1981) 122 Cal.App.3d 470 [175 Cal.Rptr. 918], recognized that Comden was no longer binding. "[T]he trial court under the new rule still has discretion to order withdrawal of counsel in instances where an attorney or a member of the attorney's law firm ought to testify on behalf of his client. The amended rule, however, changes the emphasis which the trial court must place upon the competing interests, in reaching its decision. Under the amended rule ..., the trial court, when balancing the several competing interests, should resolve the close case in favor of the client's right to representation by an attorney of his or her choice and not as in Comden, in favor of complete withdrawal of the attorney. Under the present rule, if a party is willing to accept less effective counsel because of the attorney's testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process." (Id. at p. 482, fn. omitted; see also Reynolds v. Superior Court (1986) 177 Cal.App.3d 1021, 1028 [223 Cal.Rptr. 258].)

Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578-579.

If you think you might have to be a witness for your client, then make sure you fully disclose all the risks to your client and that you obtain written permission from your client to continue. You should also disclose as soon as possible, the fact you may testify to the court and opposing counsel. You want to make sure that if you are disqualified, your client suffers as little prejudice as possible.

C. ATTORNEYS' DUTIES TO THE COURT

Attorneys also have numerous duties to the Court.

1. Meritorious Claims and Defenses

An attorney may only assert meritorious claims and defenses. California Rules of Professional Conduct Rule 3-200 provides:

A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:

(A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.

This rule does not prohibit the attorney from aggressively and creatively arguing application of the law to the facts or a good faith extension of the law. If there is direct authority contrary to your position, you must so inform the court. If you are going to take a position which is not well supported in California, research other states’ laws and law review articles to see if you can find support for your argument.

2. Candor to the Tribunal

The attorney must be truthful to the Court. Rule 5-200 requires:

In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law; (C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision; (D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and (E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

See also Business & Professions Code § 6068(d) (“It is the duty of an attorney to do all of the following: … (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”) This requirement, however, can create a tension with California Business & Professions Code § 6068(e) which requires an attorney to maintain a client’s confidences.

3. No Ex Parte Conduct

Rule 5-300(b) prohibits certain types of contact with the Court. The rule provides: “A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer, except: (1) In open court; or (2) With the consent of all other counsel in such matter; or (3) In the presence of all other counsel in such matter; or (4) In writing with a copy thereof furnished to such other counsel; or (5) In ex parte matters.

Make sure your client is aware that if he or she sees the judge outside of court, there can be no communication about the case. The best policy is to have no contact at all.

4. Other Duties to the Court

Rule 5-200 provides that an attorney has a duty not to misrepresent the law:

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

Rule 5-120 regulates pre-trial publicity:

(A) A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(B) Notwithstanding paragraph (A), a member may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) the information contained in a public record;

(3) that an investigation of the matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(a) the identity, residence, occupation, and family status of the accused;

(b) if the accused has not been apprehended, the information necessary to aid in apprehension of that person;

(c) the fact, time, and place of arrest; and

(d) the identity of investigating and arresting officers or agencies and the length of the investigation.

(C) Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

The accompanying "Discussion" of the Rule adds that "[w]hether an extrajudicial statement violates rule 5-120 depends on many factors," including whether the extrajudicial statement includes information that is inadmissible as evidence, that is false or deceptive, and the timing of the statement. In addition, Rule 5-320 provides that "[a] member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case," or with any empaneled juror. Contact with any member of the jury pool, or the families of any member of a jury pool, can subject a lawyer to discipline. The Rutter Group, California Practice Guide: Professional Responsibility, § 8:457-459 (2003); see also Penal Code § 95 which states: ‘Every person who corruptly attempts to influence a juror, or any person summoned or drawn as a juror...in respect to his or her verdict in, or decision of, any cause or proceeding, pending, or about to be brought before him or her, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, if it is by means of any of the following: [¶] (a) Any oral or written communication with him except in the ordinary course of proceedings. [¶] (b) Any book, paper, or instrument exhibited, otherwise than in the regular course of proceedings.’”

D. RELATIONSHIP WITH THIRD PARTIES

The Rules of Professional Conduct also prescribe conduct towards third parties. California Rules of Professional Conduct Rule 2-100 bars communications with a represented party.

Rule 2-100. Communication With a Represented Party

(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;

(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.

The Discussion to the rule explains:

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 such as the right of employees to organize and to engage in collective bargaining, employee health and safety, or equal employment opportunity. Other applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law.

Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made. Moreover, the rule does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. Such a member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party.

Rule 2-100 also addresses the situation in which member A is contacted by an opposing party who is represented and, because of dissatisfaction with that party's counsel, seeks A's independent advice. Since A is employed by the opposition, the member cannot give independent advice.

As used in paragraph (A), "the subject of the representation," "matter," and "party" are not limited to a litigation context.

Paragraph (B) is intended to apply only to persons employed at the time of the communication. (See Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131 [261 Cal.Rptr. 493].)

Subparagraph (C)(2) is intended to permit a member to communicate with a party seeking to hire new counsel or to obtain a second opinion. A member contacted by such a party continues to be bound by other Rules of Professional Conduct. (See, e.g., rules 1-400 and 3-310.)

You may never contact directly parties who are represented by counsel, even if there is no litigation pending. You also may not contact anyone whose statements “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)(2).

The issue often arises of who is a represented party when the party is a corporation or other business entity. Generally but not always, all current employees are represented by the corporate counsel.1 The issue of former corporate attorneys if trickier.

"[R]ule 2-100[] bars ex parte contact with current corporate employees who are specified in the rule as to any matter in which they are known to be represented by counsel. The rule is not limited to matters in litigation, and might be violated where, for instance, an attorney sought to interview the opposing party's covered employees as to a matter not yet in litigation, if the attorney knew the employees were represented by counsel in the matter." (Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1401 [58 Cal.Rptr.2d 178], original italics.) [3] "Rule 2-100 should be given a reasonable, commonsense interpretation, and should not be given a 'broad or liberal interpretation' which would stretch the rule so as to cover situations which were not contemplated by the rule." (Ibid.) "[T]he proscription against ex parte contact [applies] only where counsel 'knows' the other person is represented by counsel." (Ibid.) It does not apply where the attorney does not actually "know" but merely "should have known" that the opposing party was represented. (Ibid.)

The proscription against ex parte contact does not apply merely because an attorney should know that the opposing party will be represented by some unidentified attorney at some time after a complaint is filed. (Jorgensen v. Taco Bell Corp., supra, 50 Cal.App.4th at p. 1402.) [2b] Knowledge that a corporation employs in- house counsel "does not trigger the application of rule 2- 100, unless the claimant's lawyer knows in fact that such house counsel represents the person being interviewed when that interview is conducted." (Ibid., original italics.)

A bright line rule is absolutely necessary in this situation. (Cf. Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 129 [230 Cal.Rptr. 461] [clear and unequivocal line as to included employees is preferable].) Lawyers should not be at risk of disciplinary action for violating rule 2-100 because they "should have known" that an opposing party was represented or would be represented at some time in the future. Rule 2-100 does not provide for constructive knowledge. It provides only for actual knowledge. A requirement of actual knowledge does not deprive a represented party of the protection of the rule. "If corporations ... wish to avoid having their employees interviewed in such situations, they have a number of options. They can instruct their employees not to speak to claimant's investigators. If they are aware of a matter which has been threatened or asserted but which has not yet resulted in litigation, they can send the other party a letter warning that their employees are represented by counsel in the matter, and may not be interviewed under rule 2-100 without the consent of counsel." (Jorgensen v. Taco Bell Corp., supra, 50 Cal.App.4th at p. 1403.)

Truitt v. Superior Court (1997) 59 Cal.App.4th 1183, 1188-1189; see also La Jolla Cove Motel & hotel Apts., Inc. v. Superior Court (2004) 121 Cal.App.4th 773; Snider v. Superior Court (2003) 113 Cal.App.4th 1187.

Rule 2-100 permits an attorney to contact unrepresented persons who are former members of a company’s control group as long as those people are not represented by counsel.2 Nalian Truck Lines v. Nakano Warehouse Transp. Corp. (1992) 6 Cal.App.4th 1256. An attorney may also contact unrepresented former employees, including management employees. Federal Insurance Co. v. Superior Court (1995) 32 Cal.App.4th 94.

Rule 5-310 prohibits an attorney from advising a witness to disappear or from paying a witness. The rule provides as follows:

A member shall not:

(A) Advise or directly or indirectly cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein.

(B) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the case.

Except where prohibited by law, a member may advance, guarantee, or acquiesce in the payment of:

(1) Expenses reasonably incurred by a witness in attending or testifying.

(2) Reasonable compensation to a witness for loss of time in attending or testifying.

(3) A reasonable fee for the professional services of an expert witness.

E. No Contact With Jury

An attorney also must not have contact with the jury. Rule 5-320 provides:

(A) A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case.

(B) During trial a member connected with the case shall not communicate directly or indirectly with any juror.

(C) During trial a member who is not connected with the case shall not communicate directly or indirectly concerning the case with anyone the member knows is a juror in the case.

(D) After discharge of the jury from further consideration of a case a member shall not ask questions of or make comments to a member of that jury that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service.

(E) A member shall not directly or indirectly conduct an out of court investigation of a person who is either a member of a venire or a juror in a manner likely to influence the state of mind of such person in connection with present or future jury service.

(F) All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a person who is either a member of a venire or a juror.

(G) A member shall reveal promptly to the court improper conduct by a person who is either a member of a venire or a juror, or by another toward a person who is a either a member of a venire or a juror or a member of his or her family, of which the member has knowledge.

(H) This rule does not prohibit a member from communicating with persons who are members of a venire or jurors as a part of the official proceedings.

(I) For purposes of this rule, "juror" means any empaneled, discharged, or excused juror.

See Lind v. Medevac, Inc. (1990) 219 Cal.App.3d 516 discussing the rule.

Footnotes

1 To make sure that current employees are covered by the rule, the employers can instruct their employees to contact them before speaking to opposing counsel or they "can send the other party a letter warning that their employees are represented by counsel in the matter, and may not be interviewed under rule 2-100 without the consent of counsel." Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1212 quoting Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1403.

2 A “control group” is officers and agents responsible for directing the company's actions in response to legal advice. Bobele v. Superior Court (1988) 199 Cal.App.3d 708, 712 quoting Upjohn Co. v. United States (1981) 449 U.S. 383, 391.