City’s MOTION BY DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF’S COUNSEL, Miller, Jane Kingsley vs. City of Carmel-by-the-Sea (M99513)

ABSTRACT: Selected excerpts of the City’s MOTION BY DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF’S COUNSEL (ten pages), prepared by Attorney Suzanne Solomon, LIBERT CASSIDY WHITMORE, are presented. A Motion Hearing is scheduled for October 2, 2009 at 9:00 A.M., Department 14. Basically, the City’s MOTION requests the Court disqualify attorney Michael Stamp from representing his client Jane Miller in her action against the City because attorney Michael Stamp previously represented the City in various personnel matters from 1985-2002; Attorney Stamp should therefore be disqualified “in order to prevent the improper use against the City of the City’s confidential information provided to Mr. Stamp during his prior representation of the City.”

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DIVISION


MILLER, JANE KINGSLEY vs. CITY OF CARMEL-BY-THE-SEA

Case No. M99513
MOTION BY DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF’S COUNSEL

Date: October 2, 2009
Time: 9:00 A.M.
Dept.: 14

I. INTRODUCTION
Defendant City of Carmel-by-the-Sea request that the Court disqualify the Law Offices of Michael W. Stamp and Michael W. Stamp from representing Plaintiff in this action due to Mr. Stamp’s ethical conflict of interest. Mr. Stamp’s representation of Plaintiff in this action violates California Role of Professional Conduct 3-310(E), because Mr. Stamp previously represented the City in various personnel matters from 1985-2002. In those matters, Mr. Stamp obtained confidential information that is material to the instant action. Among other things, he advised the City on the very sexual harassment policy upon which this lawsuit is based.

Mr. Stamp never provided written disclosure notifying the City that he planned to take on a new representation adverse to the City, nor did he obtain the City’s written consent to represent Plaintiff in this action, as required under Rule of Professional Conduct 3-310 (A). Disqualification is required in order to prevent the improper use against the City of the City’s confidential information provided to Mr. Stamp.

II. SUMMARY OF FACTS
Beginning as early as 1985, Michael W. Stamp of the Law Offices of Michael W. Stamp has provided legal advice to the City of Carmel-by-the-Sea on numerous personnel matters involving the very types of issues that are issue in this lawsuit.

• 1985: Attorney Stamp advised the City about selection and appointment of employees, and determining compensation.

• 1986: Attorney Stamp advised the City about what tasks should be included in job description; Stamp gave legal advice to the City involving the parameters of at-will employment as it related to City employees.

• 1987: Attorney Stamp advised City about how to regulate personal relationships within the workplace.

• 1991: Attorney Stamp gave legal advice about the City’s policy against sexual harassment, including making revisions to the policy and provided advice about whether, when and how to investigate complaints of sexual harassment; Stamp gave advice on drafting employment agreements between the City and certain employees.

• 2001 and 2002: Attorney Stamp represented the City in a matter involving an employee accused of inappropriate treatment of female employees; Stamp gave advice regarding the timing, method and scope of the investigation of the allegations against the employee, and various options to resolve the matter.

In 2008, Plaintiff went on sick leave and sent the City a letter accusing the city Administrator of sexual harassment, disparate treatment gender discrimination, age discrimination and retaliation. Prior to the complaint letter, Plaintiff had never reported any of the alleged conduct upon which this lawsuit is based.

Upon learning of Plaintiff’s allegations, the City hired an outside investigator to investigate all of Plaintiff’s claims. Plaintiff refused to be interviewed as part of that investigation, despite repeated urgings from the City and the investigator. Nor did Plaintiff ever tell the City why she refused to be interviewed. The outside investigator interviewed 12 current and former City employees, including the witnesses Plaintiff had identified in her complaint. The investigator found that the Plaintiff’s allegations were unsubstantiated, and Plaintiff was informed of the results of the investigation. Plaintiff then filed this lawsuit.

III. ARGUMENT
A. An Attorney Cannot Represent Interests Adverse to a Former Client Without the Former Client’s Informed Written Consent

Cited California Rule of Professional Conduct 3-310 (E), 3-310 (A)(1), 3-310 (A)(2)

1. Neither Michael Stamp nor the Law Offices of Michael W. Stamp Sought or Obtained the City’s Informed Written Consent to their Representation of Plaintiff in this Action

B. Michael Stamp and the Law Offices of Michael W. Stamp Should be Disqualified From Representing Plaintiff in this Action

1. Where an Attorney Represents a Party Suing A Former Client and There is a Substantial Relationship Between the Matters, the Disclosure of Confidential Information is Presumed and Disqualification Is Required

2. Mr. Stamp and His Firm Handled Personnel Matters for the City Involving Subjects That Are At Issue in This Lawsuit

Mr. Stamp has represented the City in numerous personnel matters involving the types of issues that are identical to those that will be litigated here: sexual harassment, workplace investigations, employee selection and appointment, regulation of personal relationships in the workplace, employee agreements, and medical leave.

3. This Court Must Presume that Mr. Stamp Obtained the City’s Confidential Information That is Material to This Action Because a Substantial Relationship Exists Between This Action and the Prior Personnel Matters That Mr. Stamp Handled for the City

4. Neither Michael Stamp nor the Law Offices of Michael W. Stamp Sought or Obtained the City’s Informed Written Consent to their Representation of Plaintiff in This Action
Cited California Rule of Professional Conduct 3-310 (A)(1)

5. The Law Offices of Michael W. Stamp Must Be Vicariously Disqualified As Well

IV. CONCLUSION
Mr. Stamp and the Law Offices of Michael W. Stamp accepted employment adverse to their former client, the City of Carmel-by-the-Sea, without providing any disclosure to the City of the consequences of that representation, and without seeking or obtaining the City’s informed written consent. Mr. Stamp violated this Rule of Professional Conduct and he and his law office should be disqualified in order to prevent the improper use against the City of the City’s confidential information provided to Mr. Stamp during his prior representation of the City

Dated: September 1, 2009
LIEBERT CASSIDY WHITMORE

By: Suzanne Solomon

Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA

NOTE: MOTION based of DECLARATION OF HEIDI BURCH SUPPORTING MOTION BY DEFENDANT CITY OF CARMEL-BY-THE-SEA TO DISQUALIFY PLAINTIFF’S COUNSEL, August 26, 2009

ADDENDUM:
Rules of Professional Conduct
Rule 3-310 Avoiding the Representation of Adverse Interests
(A) For purposes of this rule:
(1) "Disclosure" means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client;
(2) "Informed written consent" means the client's or former client's written agreement to the representation following written disclosure;

(E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.

EXHIBIT A (Included with MOTION; from Plaintiff's Attorney to Defendant City of Carmel-by-the-Sea)
Form Interrogatories-Employment Law
CONTENTS
200.0 Contract Formation
201.0 Adverse Employment Action
202.0 Discrimination—Interrogatories to Employee
203.0 Harassment—Interrogatories to Employee
204.0 Disability Discrimination
205.0 Discharge in Violation of Public Policy
206.0 Defamation
207.0 Internal Complaints
208.0 Governmental Complaints
209.0 Other Employment Claims by Employee or Against Employer
210.0 Loss of Income—Interrogatories to Employee
211.0 Loss of Income—Interrogatories to Employer
212.0 Physical, Mental, or Emotional Injuries—Interrogatories to Employee
213.0 Other Damages—Interrogatories to Employee
214.0 Insurance
215.0 Investigation
216.0 Denials and Special or Affirmative Defenses
217.0 Response to Request for Admissions

NOTE: Boxes marked by Plaintiff’s Attorney, as follows:
200.0 Contract Formation
200.1, 200.2, 200.3, 200.4, 200.5

210.0 Adverse Employment Action
201.1, 201.2, 201.3, 201.4, 201.6

207.0 Internal Complaints
207.1, 207.2

208.0 Governmental Complaints
208.1, 208.2

209.0 Other Employment Claim by Employee or Against Employer
209.2

214.0 Insurance
214.1, 214.2

215.0 Investigation
215.1, 215.2