Labor & Employment Law Daily Employer’s former general counsel who investigated harassment can’t litigate EEOC lawsuit
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Tuesday, November 12, 2019

Employer’s former general counsel who investigated harassment can’t litigate EEOC lawsuit

By Marjorie Johnson, J.D.

The EEOC’s motion to disqualify the attorney was supported by its showing that his testimony would be necessary since he was involved as the employer’s internal investigation, met with the alleged harasser and staff, and was admittedly familiar with the employer’s personnel, policies and procedures.

An employer’s former general counsel could no longer serve as co-counsel in a lawsuit brought against the company by the EEOC, a federal district court in California ruled in granting the Commission’s motion to disqualify. The record showed that the employer would not suffer the “usual” hardship imposed by disqualification, the attorney’s testimony would be necessary since he was involved as an investigator into the alleged violations, and there was no evidence that the EEOC moved to disqualify the attorney as a litigation tactic, despite a 12-month delay in seeking to remove him (EEOC v. Bay Club Fairbanks Ranch, LLC, November 6, 2019, Whelan, T.).

Former general counsel. In this lawsuit brought by the EEOC, the employer was represented by lawyers from two different law firms, one of whom had served as the company’s general counsel since 2009. The EEOC now sought to disqualify him under California Rule of Professional Conduct 3.7(a), which restricts an attorney’s ability to act as an advocate in a case where he will also be a witness, unless his testimony relates to an uncontested issue or to the nature and value of legal services rendered.

The rule also allows continued representation where the client consents to the attorney’s dual role, which the employer alleged here, but a trial court still has discretion to disqualify counsel. In doing so, the court “must weigh the competing interests of the parties against potential adverse effects on the integrity of the proceeding before it” and should resolve “the close case” in favor of the client’s right to representation by an attorney of their choice.

The California Court of Appeal has instructed courts to consider “the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.” Courts must also examine whether counsel’s testimony is “genuinely needed” and the possibility the moving party is using the motion to disqualify for purely tactical reasons.

No “usual” hardship. Here, the employer failed to show that it would suffer significant hardship if the attorney was disqualified. First, there was no evidence suggesting that his disqualification would result in the duplication of litigation expenses or effort. While the employer relied on his “decade long” role as its lawyer, who was “familiar with its employment practices, procedures, investigations, employees, litigation as well as resolutions of cases,” there was no indication as to the extent to which he had been involved in the lawsuit.

Co-counsel took lead. Indeed, while listed as “co-counsel,” the other law firm’s attorneys signed all of the employer’s pleadings, briefs, and joint motions, and all of its filings were on the other firm’s pleading paper. Similarly, the other firm’s attorneys prepared all declarations concerning discovery issues, appeared in discovery proceedings before the magistrate judge, and were involved in the communications with the EEOC and the co-defendant regarding this litigation.

“Client representative” at ENE. In contrast, the only document the attorney had signed was the declaration filed in opposition to the instant motion, where he simply stated that he has served as the employer’s general counsel since 2009, well before this lawsuit was filed. He did not provide any indication regarding the amount or type of work he has performed in this litigation. Also significant was his appearance at the parties’ Early Neutral Evaluation (ENE) conference with the judge as the client representative—not litigation counsel.

Thus, the record strongly suggested that he had an extremely limited role as counsel in this litigation and it didn’t appear that the employer would incur the duplicative costs and time-consuming effort that clients usually incur when counsel is disqualified. Additionally, he could continue to consult with the other attorneys and the employer regarding the litigation, further ameliorating any potential harm to the company.

Testimony was needed. The court was also satisfied that the attorney’s testimony was necessary since he undisputedly represented during the ENE that he would likely be a witness during litigation. He also admitted in his declaration his “involvement as investigator,” during which he met with the alleged harasser. In correspondence with the EEOC before the lawsuit was filed, he also represented that he talked to other staff regarding the claimant’s allegations and was admittedly familiar with the employer’s personnel, policies and procedures.

Motion wasn’t litigation tactic. Finally, there was no indication the EEOC filed the motion as a litigation tactic as both the attorney’s limited role in the lawsuit and the need for his testimony suggested legitimate concerns. The employer also failed to convince the court that the EEOC “unreasonably” delayed filing the motion. During the 12-month period, the attorney spent a limited amount of time litigating, while co-counsel took the lead.

The court also rejected the employer’s contention that the disqualification motion was not “ripe” and should be delayed until closer to trial. This would not only increase the amount of harm the employer would suffer to the extent the attorney would become active in the case, it was at odds with the employer’s other contention that the EEOC waited too long to file the motion.

Appearance of impropriety. The court was also concerned that the attorney’s different roles in this case—and confusion over which role he played at any point, particularly during the ENE—would “create the appearance of impropriety” and adversely affect the integrity of the proceedings. Indeed, the court was “at a loss” as to how he could “forget” that he attended the ENE as the client representative and found that the incident lent support to the EEOC’s contention that the employer had used confusion regarding his true role as a litigation tactic.

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