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Koo v. Rubio's Restaurants6/11/2003
An attorney representing a corporate defendant in a class action lawsuit concerning overtime wages for managers declared before the court that his firm represented both the defendant and its managers. He later clarified that his only intention in so declaring was to put opposing counsel on notice that the defendant corporation's managerial agents were "represented parties" to the extent provided in State Bar Rules of Professional Conduct, rule 2-100, but that he certainly did not mean to convey the impression that he represented the managers in their individual capacities. Of course, the obvious albeit unspoken corollary was that if the proscriptions of rule 2-100 were successfully invoked, his client would gain a tactical advantage in discovery. In any event, the attorney's supplemental declarations were too late. He had already conveyed the impression that he baldly professed to represent all parties to the action, both the plaintiffs and the defendant. The trial court disqualified his firm from further participation in the case. The employer challenges the disqualification on appeal.
We hold that an attorney's unilateral declaration regarding representation cannot, by itself, create an attorney-client relationship when none otherwise exists. Here, there was no evidence, other than the erroneous declaration, that the law firm in fact represented the interests of the managers both as corporate representatives and as potential class members. There was no evidence that any of the potential class members had hired the law firm. There being no attorney-client relationship, it was an abuse of discretion to disqualify the law firm, thereby necessitating that the defendant find another law firm to pick up the ball and continue the defense of the potentially massive and costly lawsuit. We reverse and remand.
I. FACTS
A. Class Action Filings
Kerry O. Bartlett (Bartlett) filed a class action complaint, on behalf of himself and others similarly situated, alleging that defendant Rubio's Restaurants, Inc. (Rubio's) failed to pay salaried general managers and assistant managers overtime compensation (Bartlett v. Rubio's Restaurants, Inc. (Super. Ct. Orange County, No. 01CC00319)) (the Bartlett Action). Gabriel Koo (Koo) filed a similar class action complaint (Koo v. Rubio's Restaurant, Inc. (Super. Ct. Orange County, No. 01CC00231)) (the Koo Action).
B. Motion to Compel
The law firm of Righetti Wynne (Righetti), representing Bartlett, sought to discover the names, addresses and telephone numbers of all of Rubio's managers. Rubio's objected to the request. Consequently, Righetti filed a motion to compel responses to interrogatories, stating the information sought was directly relevant to class certification.
In response to the motion to compel, the law firm of Carlton, DiSante & Freudenberger (Carlton), representing Rubio's, filed an opposition, a responsive separate statement, and a supporting declaration of counsel. The responsive separate statement and declaration of counsel each contained wording that may have been merely sloppy, or may have been crafted when the writer's attention was focused on winning the immediate discovery battle.
Among other things, Rubio's responsive separate statement contained the following language: "[Rule] 2-100 prohibits ex parte communications with a represented party about the subject of the representation. Here, Rubio's counsel represents Rubio's current assistant and general managers. (Freudenberger Decl., [ ] 2.) Therefore, Plaintiff's counsel cannot directly contact these individuals without Rubio's consent." The responsive statement, in distinguishing the case of Atari,
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