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Lawyer Properly Disqualified Over Deposing Witness—C.A.
Opinion Says Ethical Breach in Questioning Defendant’s Employee in Absence of Her Lawyer Justified Action
By a MetNews Staff Writer
The Court of Appeal for this district has held that a judge properly barred an Hermosa Beach lawyer and her law firm from continuing to represent the plaintiff in an action for sexual harassment in light of the attorney’s breach of professional ethics by deposing an employee of the defendant in the absence of his attorney despite her knowledge that he was represented by counsel.
San Bernardino Superior Court Judge Tony Raphael, sitting on assignment to this district’s Div. Seven, authored the unpublished opinion, filed Tuesday. It affirms an order by Los Angeles Superior Court Judge Holly Fujie disqualifying Twila S. White and the Law Offices of Twila S. White from further participation in the case.
White had been the lawyer for Decora Owens in litigation against Kaiser Foundation Health Plan, Inc. and Southern California Permanente Medical Group, Inc. Kaiser is represented by the San Marino firm of Cole Pedroza.
Attorneys from that firm had appeared at depositions of nine of 10 nonparty defense witnesses—all employees of Kaiser—prior to July 29, 2022, and on that date, represented two additional employee deponents. The deposition of a third employee, Taniyah Scott, had been scheduled for 3 p.m. on July 29.
At about 3:37 p.m., Nayri Jilizian, an associate in Cole Pedroza, logged into the Zoom meeting, and Cole Pedroza partner Zena Jacobsen, who was acting for the woman being deposed, announced that Jilizian, a colleague of hers, would “be defending the next deposition.”
Respondent’s Brief
As Cole Pedroza recounted the events in its respondent’s brief, at about 4:15 p.m., as the deposition was being wrapped up, a least for the day, Jilizian telephoned Scott to tell her she would not be deposed that day and not to log on, and White concluded her questioning at approximately 4:19 p.m. The brief recites:
“Jacobsen explicitly informed White that Scott ‘won’t be appearing today’….White responded, “She will be appearing. You can leave if you want to. We’re going forward.’…Attorneys Jacobsen and Jilizian exited the Zoom meeting believing White would take notice of a non-appearance….”
The brief continues:
“After attorneys Jacobsen and Jilizian exited the Zoom meeting, a member of White’s staff called Scott and instructed her to log in for deposition….Confused, Scott followed the instruction from White’s staff….Scott assumed and expected that attorney Jilizian would be present at her deposition once she logged in….Attorney Jilizian was not present….White nevertheless proceeded to take the ex parte deposition of Scott outside the presence of her counsel, Cole Pedroza.”
On Aug. 8, Kaiser moved for the disqualification of White based on her questioning of Scott without her lawyer being present in violation of rule 4.2 of the State Bar Rules of Professional Conduct. It later added that it had learned that the plaintiff’s lawyer had directly contacted two other Kaiser employees notwithstanding that she had been told that Cole Pedroza represented them.
White’s Argument
White argued on appeal that Fujie erred in ordering her disqualification, citing a statement by Scott during her deposition that she had not retained the services of Cole Pedroza. Her opening brief quotes 2003 Court of Appeal opinion from the Fourth District’s Div. Three in Koo v. Rubio’s Restaurants, Inc. as saying that “an attorney’s unilateral declaration regarding representation cannot, by itself, create an attorney-client relationship when none otherwise exists.”
The appellant declared:
“Yet, the trial court’s ruling is based on Defense Counsel’s unilateral declarations—’White had actual knowledge the aforementioned three witnesses were represented by counsel once [Cole Pedroza] directly told her as much.’…The trial court’s ruling is contrary to California law and unsupported by substantial evidence.”
She insisted that she did not violate rule 4.2 because “Cole Pedroza never had an attorney-client relationship with Scott,” arguing:
“Research of California state law did not reveal any cases on the narrow issue of whether defending a witness at her deposition creates an attorney-client relationship.”
Raphael wrote:
“Here, there was substantial evidence that Cole Pedroza represented Scott for purposes of her July 2022 deposition. Jilizian in her declaration averred that Scott had asked Jilizian to meet with her to prepare her for, and represent her at, her deposition and that Jilizian had prepared Scott for the deposition for well over an hour. Although an attorney’s unilateral declaration regarding representation is insufficient on its own to create an attorney-client relationship, Jilizian’s declaration provides evidence of an attorney-client relationship, not a unilateral attempt to create one. Jilizian’s declaration is a far cry from the unilateral declarations regarding representation that have been found insufficient.”
He went on to point out:
“Jilizian’s declaration establishes that Scott herself agreed to have Jilizian represent her, even if only for purposes of her July 2022 deposition. Moreover, Cole Pedroza supported its disqualification motion not only with Jilizian’s declaration, but also with other evidence, including excerpts of Scott’s deposition transcripts indicating Scott, by her conduct, had impliedly agreed to have Cole Pedroza represent her at, and in preparation for, her July deposition.”
The jurist did not see a need to discuss White’s assertion that Fujie “erroneously found that defending a deposition is the same as representation (even though it is not)” and that no attorney-client relationship is formed by handling a deposition.
Substantial evidence also supports Fujie’s conclusion that White knew of Cole Pedroza’ representation of two other witnesses whom she contacted, Raphael said.
Hardship Claimed
The appellant’s opening brief contends:
“White represented Appellant in this intensely litigated matter for nearly for three years prior to being disqualified. If the order is not reversed, Appellant will be forced to retain new counsel at great expense, who will have no choice but to duplicate a substantial portion of the work performed by White prior to her disqualification. This will result in great expense, delay, and prejudice to Appellant.”
Raphael responded:
“Owens contends on appeal that if the trial court’s disqualification order is not reversed, she would suffer substantial hardship. Owens, however, fails to support that conclusory contention with any citations to the appellate record. She points to no evidence presented to the trial court supporting her claim that White’s disqualification would result in a significant financial burden. Her contention is forfeited.”
The case is Owens v. Kaiser Foundation Health Plan, B325579.
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