Jorgensen v. Taco Bell Corp

In Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, seven months before the plaintiff filed her sexual harassment suit against Taco Bell, her attorney contacted and interviewed the alleged harasser and two other employees. Taco Bell argued that rule 2-100 should apply where the attorney should have known that the person would be represented. In rejecting Taco Bell's argument, the court noted several "troubling implications, " including that Taco Bell's proposal would discourage attorneys from conducting reasonable investigations into the merits of their clients' claims before filing a lawsuit. (Jorgensen, supra, at p. 1402.) The court indicated that attorneys should not be subject to disciplinary action for interviewing a person who would be represented by some unidentified attorney at some future date after the complaint is filed. (Ibid.) The court also observed that, while many American corporations have in-house counsel, knowledge of that fact is insufficient. An attorney must know that in-house counsel represents the specific person being interviewed at the time of the interview. (Ibid.) In Jorgensen v. Taco Bell Corp. (1996) the plaintiff was a former employee of the defendant who sued her employer, alleging she was sexually harassed and assaulted by her supervisor. Prior to filing suit, her attorney retained a private investigator that interviewed the alleged harasser and other employees of the defendant. (Jorgensen, supra, 50 Cal.App.4th at pp. 1399-1400.) The employer then brought a motion to disqualify the plaintiff's counsel, asserting that the attorney violated rule 2-100 because of the interviews. The plaintiff opposed the motion, asserting that at the time of the contacts counsel did not know that the defendant or its employees were a "party the member knows to be represented by another lawyer in the matter." (Jorgensen, supra, at p. 1400.) The trial court denied the motion to disqualify and the Court of Appeal affirmed that decision. (Id. at pp. 1400-1401.) In affirming the trial court's order, the Court of Appeal stated that rule 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." (Jorgensen, supra, 50 Cal.App.4th at p. 1401.) The court further stated that "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 covered by the rule." (Jorgensen, supra, at p. 1401.) The court further rejected the employer's contention that rule 2-100 should apply not only when an attorney "knows" the other person is represented, but also where the attorney "should have known" that the other person was or would be represented. (Jorgensen, supra, at p. 1401.) The court also held that knowledge that the defendant organization employed 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." (Jorgensen, supra, at p. 1402.) The court went on to hold that if organizations "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. ... 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, supra, at p. 1403.)