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Jackson v. Ingersoll-Rand Co.2/23/1996
STRANKMAN, P. J.
Defense counsel was disqualified for communicating with plaintiff's ex-wife, a former plaintiff whose loss of consortium cause of action was dismissed over two years earlier after she separated from plaintiff. The trial court found that defense counsel's communication violated a professional ethics rule proscribing communications with represented parties. (Rules Prof. Conduct, rule 2-100 [Deering's Cal. Codes Ann. Rules (State Bar) (1988 ed., 1995 pocket supp.)] (Rule 2-100.) Plaintiff claims his ex-wife continued to be represented by the law firm retained to prosecute their case while married, and defendants claim the ex-wife was no longer a represented party and could be freely contacted. We find no basis for the trial court's Conclusion that plaintiff's ex-wife was a represented party, and reverse the disqualification order.
FACTS
In 1991, respondent Richard Herbert Jackson sued appellants Ingersoll-Rand Company and Voegtly and White claiming he was injured by his occupational use of their vibrating pneumatic tools. Respondent stated several causes of action, including negligence and product liability. Respondent's wife, Janice Lee Jackson, also joined as a plaintiff and sued for loss of consortium. Respondent and his wife initially appeared in propria personas, but were represented by Kazan, McClain, Edises, Simon & Abrams (Kazan firm) in February 1992 when plaintiffs filed an amended complaint.
Respondent and his wife separated in March 1992. In August 1992, Ms. Jackson dismissed her loss of consortium cause of action, and the Kazan firm served notice of the dismissal upon appellants' counsel, Jane Curran Pandell. In a September 1992 letter to Attorney Pandell's firm, the Kazan firm stated that Ms. Jackson was "no longer a party in this matter." Respondent petitioned for dissolution of his marriage in April 1993 and judgment of dissolution was filed in June 1993. In the division of property, respondent received all assets and liabilities from "any/all lawsuits handled by attorney's Kazan . . . ." The dissolution papers were received by Attorney Pandell at some point and later used by her in respondent's deposition.
Respondent testified in his deposition that he believed his marriage failed, in part, because of the injuries he suffered from appellants' tools. Attorney Pandell decided to depose respondent's ex-wife and telephoned her on January 22, 1995, to schedule a convenient time. Attorney Pandell immediately identified herself as opposing counsel in respondent's personal injury action. According to Attorney Pandell, Ms. Jackson said she thought the "case had already been concluded and that she had had no involvement in the case as a party for over two years since she went into her ex-husband's attorney's office 'to sign some papers' to withdraw from the case because she 'did not want any part of it.'" Attorney Pandell says Ms. Jackson was agreeable to being deposed, but feared respondent's retaliation and asked that he be excluded from the deposition.
Attorney Pandell wrote to the Kazan firm advising it of her intention to depose Ms. Jackson and requesting that respondent not attend the deposition. The Kazan firm denied the request and accused Attorney Pandell of violating an ethical rule of the profession proscribing contact with represented parties. (Rule 2-100.) Attorney Pandell replied that Ms. Jackson was no longer represented by the Kazan firm and on February 1, 1995, subpoenaed Ms. Jackson for a deposition. That day, Ms. Jackson telephoned Attorney Pandell and reported, in a recorded message, that she rebuffed an attorney with the Kazan firm who called her with warnings of unpleasant disclosures if she
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