Continental Insurance v. Superior Court (32 Cal. App. 4th 94, 1995)

Opinion

LILLIE, P. J.

This consolidated proceeding involves seven petitions for writ of mandate; in four of such petitions, petitioners, plaintiffs in the action below, seek to vacate those parts of the trial court’s orders of June 27, 1994, and August 4,1994, precluding petitioners from calling Francisco Robleto, a former employee of real party in interest and defendant Commercial Building Maintenance Company (CBM), as a witness or using his testimony or statements at any hearing or trial; in three of the petitions, petitioners seek to vacate an August 17, 1994, order granting CBM’s motion to suppress the testimony of another former employee of CBM, Margarita Fleites, on the ground that “Plaintiff’s attorneys [ex parte] contact with Fleites was improper and was in violation of [California State Bar Rules of Professional Conduct], rule 2-100.” The principal issue raised by the petitions is whether the trial court abused its discretion in precluding petitioners from admitting testimony of two former employees of CBM at any hearing or trial.

Factual and Procedural Background

The underlying litigation arises out of a May 4, 1988, fire at the First Interstate Tower; the proceeding is comprised of a wrongful death and several personal injury actions consolidated with 12 property damage cases brought by tenants or subrogated insurers of tenants of the First Interstate Tower who allegedly sustained property damages in the fire. The wrongful death and some of the personal injury actions were settled before some of the 12 property damage cases were filed. Petitioners herein, some of the plaintiffs in the property damage actions, sued, inter alla, defendants and real parties in interest CBM and Cleaning Corporation of America (CCA), which acquired CBM a few weeks after the fire. Petitioners alleged that CBM’s employees blocked open fire doors and failed to report and/or act upon unusual or burning odors in the building several hours prior to the time that building security was notified of the fire.

In 1991, petitioners entered into a “Joint Prosecution Agreement” to govern their respective rights and obligations in the litigation. Under the Joint Prosecution Agreement, upon consummation of settlement agreements with other defendants not parties herein, the “Major Subrogation Plaintiffs” (Insurance Company of North America, Continental Casualty Company, Continental Insurance Company, and the Allianz group of plaintiffs) “shall have the right and obligation to direct the further prosecution of the Action on all issues of liability (but not on the issue of damages) as to all remaining defendants.” Eight other plaintiffs, including petitioners Federal Insurance Company and Vigilant Insurance Company, referred to in the agreement as part of the “Little Eight,” were obligated to “cooperate with the Major Subrogation Plaintiffs,” and “make available all discovery heretofore taken in the Action by the Little Eight. . . .”

We proceed to set out the factual background with respect to the orders pertaining to Francisco Robleto, and then with respect to the order pertaining to Margarita Fleites.

A. June 27, 1994, and August 4, 1994, Orders (Mr. Robleto; Petition Nos. B085542, B086196, B086221, and B086326)

In May 1994, defendants CBM and CCA filed a motion to disqualify Attorney Jay M. Goldstein and the law firm of Cozen & O’Connor, counsel for plaintiffs Continental Casualty Company, Insurance Company of North America, Continental Insurance Company and cross-defendant First Interstate Bank of California, on the ground that Goldstein “intentionally misrepresented himself as the attorney representing CBM to Mr. Francisco Robleto, a former Supervisor at CBM and a witness in this litigation, thereby (1) obtaining an unfair advantage in this litigation, and (2) violating American Bar Association Model Rules of Professional Conduct, Rules 4.1 and 4.3.” CBM claimed that the alleged misconduct “continues to have a prejudicial effect on defendant CBM as the information obtained as a result thereof will likely be used advantageously against CBM throughout the course of this litigation.” The motion was supported by declarations of Robleto, Kevin James, an attorney for CBM and CCA, and Robert Clunie, a former CBM employee.

Robleto declared that on May 4, 1988, he was employed by CBM as a night supervisor at the First Interstate Tower; he reads and speaks both English and Spanish fluently; on February 7, 1994, Kevin James of the firm of Greenberg, Glusker, Fields, Claman & Machtinger, contacted him to discuss the fire; James introduced himself as the attorney representing CBM; he told James that he had already been interviewed a few weeks before by the attorney representing CBM in relation to the fire; James asked him to identify the other attorney; he could not remember the other attorney’s name, but he had a business card with the name of Jay Goldstein from Cozen & O’Connor; James told him that he, not Goldstein, represented CBM; he and James then discussed the events surrounding the fire; on February 14, 1994, he and James met for about one hour; at that meeting, he told James that he had met with Goldstein for about 90 minutes; Goldstein showed him numerous documents and he reviewed and discussed the documents with Gold-stein, as well as discussed the events surrounding the fire; Goldstein told him that he (Goldstein) was friends with Robert Clunie and had recently met with Clunie. At Robleto’s February 14, 1994, meeting with James, Robleto executed a declaration stating that prior to knowing that there was a fire in the First Interstate Tower, he never smelled any strange or unusual smell, he never smelled smoke or a burnt or burning smell; while working for CBM, he never saw or heard of trash bags blocking the fire doors in the service elevator lobby on any floor; he never received any complaints that trash bags were blocking the fire doors; he remembers seeing a refrigerator, vending machine and other items being stored in the 12th floor service elevator lobby.

Attorney Kevin James declared that on February 7, 1994, he contacted Robleto for the first time to discuss events related to the fire; Robleto was “absolutely sure” that Goldstein had told him that he (Goldstein) represented CBM. Robert Clunie declared that he is not friends with Goldstein and the only contact he had with him occurred in October 1993 when Goldstein asked him questions at a deposition in this action.

The Continental Insurance Company plaintiffs (hereafter referred to collectively as Continental Insurance), as well as plaintiff Frederick W. Hill, opposed the motion on the grounds that Mr. Goldstein did nothing wrong, did not misrepresent his clients to Robleto, did not obtain an unfair advantage, and any information obtained from Robleto was known from prior discovery with respect to other witnesses in the case.

In opposition to the motion, Attorney Dean Rauchwerger, an attorney representing the Allianz group of plaintiffs, declared that his firm, Clausen Miller, Gorman, Caffrey & Witous (Clausen Miller), located Mr. Robleto, a former CBM employee, in San Diego in November 1993; on January 9, 1994, he telephoned Robleto, told him whom he represented, and confirmed that Robleto was no longer a CBM employee and was not represented by counsel; Robleto agreed to meet with one of his (Rauchwerger’s) colleagues on January 12,1994, to discuss the events surrounding the May 1988 fire; as Clausen Miller coordinates the prosecution of the instant actions with two other law firms representing other plaintiffs and cross-defendants in the consolidated litigation, it was agreed that Goldstein, who lives in San Diego, was to conduct the meeting.

According to Goldstein’s declaration, he introduced himself to Robleto on January 12, 1994, and told him he was working with Rauchwerger and represents First Interstate Bank, First Interstate Tower and their insurance companies; he never indicated that he represented CBM; he told Robleto that he had previously met a CBM employee, Mr. Clunie, who seemed like a “nice fella,” and they discussed Clunie’s deposition testimony; he also discussed with Robleto other documents and asked him essentially the same questions about the fire as he has asked over 200 other nonparty witnesses in the case, who were either nonmanagerial level ex-employees of various defendants or independent percipient witnesses.

Goldstein also declared that he received a February 18, 1994, letter from the Greenberg firm, CBM’s counsel, charging him with “blatant and unethical conduct” in misrepresenting to Robleto that he (Goldstein) was CBM’s lawyer and that he was good friends with Clunie. Goldstein’s February 22, 1994, letter in response denied any misrepresentations.

Attorney George Zelcs, with the Clausen Miller firm, representing the Allianz plaintiffs, declared that after reading the Greenberg firm’s February 18 letter, he telephoned Robleto and identified himself as an attorney for the First Interstate Tower and its insurers; he reconfirmed that Robleto was not employed by CBM and was not represented by counsel; on March 8, 1994, he arranged to personally meet Robleto at his home on March 14, 1994; at that meeting, Robleto stated that he had been interviewed by other lawyers in the litigation, but could not name them or their clients; Zelcs asked Robleto if he had met with a Mr. Goldstein, and Robleto replied that he believed he had, but appeared uncertain of who Goldstein was or which parties he represented; Robleto also indicated that he had spoken to Kevin James of the Greenberg firm and had signed a statement prepared by Mr. James. Zelcs discussed the events surrounding the fire with Robleto and Robleto signed a statement memorializing his recollection of the facts surrounding the fire; Zelcs also told Robleto that he would probably formally take his deposition; he left Robleto with his business card and wrote the name of his client, First Interstate Tower, on the card; later, Robleto agreed to accept service of a subpoena for a June 1, 1994, deposition.

According to Robleto’s March 14, 1994, declaration, Robleto was told the day after the fire by Noel Estrada that he had spoken with Margarita Fleites, a janitor working on the night of the fire; Fleites told Estrada that on the evening of the fire, she left early because she had become sick from smelling something burning; he (Robleto) was told by Zora Cadovec, Fleites’s boss, the day after the fire that Fleites had left early because she had become sick from smelling something burning; the day after the fire, he went to the CBM office in Glendale where he met with Bob Clunie and Jim Harris and informed them of the activities of CBM employees in the building on the night of the fire.

In Robleto’s June 1, 1994, deposition testimony, he admitted that when he met with Zelcs on March 14, he (Robleto) told Zelcs that he had met with Goldstein but he was confused and was not sure whom Goldstein represented; Robleto also admitted meeting with James and that he knew James represented CBM. Robleto also testified in deposition that he did not know whether Noel Estrada or Zora Cadovec spoke directly with Fleites, but Estrada and Cadovec told him that there were rumors that Fleites had left early on the day of the fire because she had become sick from smelling something burning; he did not discuss the rumors about Fleites smelling something burning with Clunie or Harris at the Glendale meeting.

After oral argument on CBM’s motion to disqualify on June 8, 1994, the court continued the matter to June 22, 1994, and in the interim ordered that CBM be afforded the opportunity to depose Goldstein on the subject of his conversation with Robleto. According to Goldstein’s deposition testimony, he did not tell Robleto that he represented CBM or that he was good friends with Clunie; he also did not tell Robleto that his clients were adverse to CBM in the lawsuit, or the nature of any of the plaintiffs’ claims against CBM; Robleto told him (Goldstein) that on the night of the fire, he was on the 42d floor working on payroll in the CBM office; the first awareness he had of a fire was a public address system announcement about it.

In CBM’s supplemental brief filed in support of its motion to disqualify Goldstein and the Cozen & O’Connor law firm, CBM argued that Gold-stein’s conduct in communicating with Robleto was improper in that Gold-stein misrepresented Fleites’s deposition testimony to Robleto, and “programmed” Robleto for his deposition testimony that Fleites was sick from smelling something burning; according to CBM, neither Fleites nor Cadovec testified in deposition that Fleites told Cadovec she was sick because she smelled something burning; according to CBM, Fleites testified she told Cadovec that she was sick because she “had smelled something, smelling something strange.”

In supplemental opposition by the Continental Insurance plaintiffs, plaintiffs argued that the basis of the motion changed from Goldstein’s alleged misrepresentation of the identity of his client to his alleged conduct in influencing or “tainting” Robleto’s deposition testimony; neither occurred and there was no basis for disqualification.

On June 22, 1994, the court took the matter under submission. On June 27, 1994, the court issued an order which stated: “Mr. Robleto was misled by statements of, or a failure to make relevant disclosing statements by, Mr. Goldstein. Nevertheless, the information obtained is information that would have developed in the case in any event, because it is important information and the disclosure of which may shed light on the sequence of events. The disadvantage to moving parties is not such to warrant disqualification. The assertion that by having the Robleto information responding party was able to more deftly elicit deposition testimony from Robleto is without any disadvantageous consequences to any party. If responding party did not ask proper questions or did so in an improper manner, then others at the deposition had the opportunity to register objections. [U Disqualifications at this stage of the case for the objected to action would serve no purpose. [^Q The motion is denied on the following conditions: The clients of responding party, Cozen & O’Connor, and any party on the same side of the case as those clients, are prohibited from using, either directly, indirectly or on cross-action, Robleto’s deposition and any declaration or statement of Robleto. Further, said clients may not hereafter call or present Robleto as a witness at any hearing or trial.”

The Allianz group of plaintiffs, the Insurance Company of North America group of plaintiffs, and plaintiffs Federal Insurance Company, and Vigilant Insurance Company moved the court to reconsider its order of June 27, 1994; after oral argument on August 4, 1994, the court took the matters under submission; a minute order of that date stated that “Motions to reconsider granted. Upon reconsideration the court affirms the 6/27/94 order.”

Petitioners filed four petitions for writ of mandate challenging the June 27 and August 4, 1994, orders insofar as they preclude petitioners from using Robleto’s testimony; in other words, petitioners do not challenge that part of the order denying the motion for disqualification, but only the conditions attached to that denial.

B. August 17, 1994, Order (Ms. Fleites; Petition Nos. B086564, B086686, B086811)

In July 1994, CBM and CCA filed a motion to “suppress all testimony, declarations and statements of Margarita Fleites,” a former CBM employee unrepresented by counsel, on the ground that Attorneys George Zelcs, Jean-Pierre Ruiz, and the Clausen Miller firm, attorneys for the Allianz group of plaintiffs, engaged in ex parte communications with Fleites, in violation of California Rules of Professional Conduct, rule 2-100 (rule 2-100), its ABA Model Rule counterpart, ABA Model Rules of Professional Conduct, rule 4.2 (ABA rule 4.2), and ABA rule 4.3 (ante, fn. I).

Defendants’ motion was based on ex parte contacts which Fleites discussed in her December 15, 1993, deposition. Defendants alleged that shortly before her deposition, Fleites met on several occasions with Zelcs and Ruiz to discuss her employment with CBM and the circumstances surrounding the fire; they did not explain to Fleites that “their clients were suing CBM or that their clients alleged that CBM was at fault for damage resulting from the fire or that Fleites herself was at fault for damage resulting from the fire.” Defendants interpreted rule 2-100 to apply to contacts with unrepresented former corporate employees when the subject of the communication involves an act or failure to act by the employee in connection to the matter which may be imputed to the corporation, and asserted that Fleites was not merely a witness to events and actions taken by CBM while she was employed there, but Fleites was one of the primary actors for CBM with respect to the conduct giving rise to the lawsuit. Defendants also maintained that counsels’ violations of the ethical rules warrant the suppression order because without such order, “plaintiffs will unfairly benefit from their counsel’s ‘coordinated’ misconduct.” Defendants alleged that Fleites’s deposition testimony demonstrated “the crucial adverse impact of Ruiz’s and Zelcs’ ex parte communications” in attempting to “manufacture testimony favorable to plaintiffs,” in that under questioning at her deposition, Fleites allegedly repudiated statements in a prior declaration obtained by Zelcs and Ruiz.

Defendants’ motion was opposed by the Allianz plaintiffs, the Continental Insurance plaintiffs, the First Interstate plaintiffs, plaintiffs Insurance Company of North America, Federal Insurance Company, Vigilant Insurance Company, and Frederick W. Hill. Plaintiffs opposed the motion on the grounds that the motion was simply a tactical maneuver in that CBM and its counsel were aware of plaintiffs’ contacts with Fleites in September 1993 and raised no objection until July 1994; Fleites had given prior statements in 1988 to a City of Los Angeles Fire Department investigator and to CBM’s insurance adjuster, and in 1989 had given a deposition, which were all consistent with her December 1993 deposition testimony; plaintiffs’ counsel did not violate rule 2-100 or the ABA Model Rules of Professional Conduct because the rules do not prohibit communication with former employees of an adverse party.

The evidence opposing the motion revealed that Fleites worked for CBM until June 1990; according to a May 9, 1988, recorded statement summary by CBM’s insurance adjuster, Fleites stated that when she was leaving the bags of trash near the freight elevator door on the 12th floor, “she smelled something strong like sulfite,” and she “thought that the smell could come from the trash but she did not mention this to anyone”; she has diabetes and high blood pressure and was under medication but that day she did not take her medication and did not eat anything; Fleites “thought to report to her supervisor about the strong odor she smelled but she thought they would not believe her ....’’

According to portions of Fleites’s March 1989 deposition testimony, she smelled something burning on the 12th floor and was nauseous, so she left work at about 8:30 p.m.; before she left, she did not tell Zora Cadovec, her boss, or anyone there that she thought she had smelled something burning; the smell was “like when you get a match open," and “like a candle that’s burning.”

In Fleites’s handwritten statement in Spanish, given to Zelcs and Ruiz in October 1993, which statement was translated into English during Fleites’s December 1993 deposition, Fleites characterized the smell as “like plastic or cable burning,” and stated that she had never smelled a similar smell before that evening, and that she told Zora in Spanish that she could smell something burning on the 12th floor.

In Fleites’s December 1993 deposition, taken in Las Vegas, Nevada, Fleites was asked what she told Zora before she left work on the night of the fire; Fleites responded, “That I needed to go home because I was feeling sick; that I had smelled something, smelling something strange. What I said about plastic or similar to other smells, it was something that I said thinking, trying to find to match that smell. I’ve been trying to match that smell, but I can’t, that smell, that’s what I said. It has been for me to try if I can find out what the smell was, but I haven’t been able to find it. It’s not firm because I don’t know what it was. It was something strange.”

After oral argument on CBM’s motion to suppress all testimony of Fleites, the court took the matter under submission. On August 17, 1994, the court issued the following minute order: “Rule 2-100 of the Rules of Professional Conduct of the State Bar of California provides that a member shall not communicate with another party known to be represented without consent of the other lawyer. A ‘party’ includes an employee if the communication concerns acts or omissions of the employee which may bind the employer, be imputed to, or be deemed an admission of, the employer. Although the ‘Discussion’ notes under the Rule states that paragraph (B) of the Rule ‘is intended to apply only to persons employed at the time of the communication’ citing Triple A Machine Shop, Inc. v. State of California [(1989) 213 Cal.App.3d 131 (261 Cal.Rptr. 493)], that case does not stand for that proposition. Rather, Triple A opines that ‘rule 2-100 permits opposing counsel to initiate ex parte contacts with unrepresented former employees, and present employees . . . who are not separately represented, so long as the communication does not involve the employee’s act or a failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.’ Triple A. at 140. Moreover, Triple A does not limit such interpretation to precluding the ex parte obtaining of privileged material. The Rule is broader in concept. Triple A at 140-142. [1 Plaintiffs’ attorneys contact with Fleites was improper and was in violation of Rule 2-100. [‘fQ The motion is granted as follows: Plaintiffs and their agents, etc., and all parties on the same side as plaintiffs are prohibited from using, either directly, indirectly or on cross-examination Fleites’ 1993 deposition and any non-deposition declaration or statement of Fleites. Further, said parties may not hereafter call or present Fleites as a witness at any hearing or trial.”

All of the plaintiffs who had filed petitions for writ of mandate with respect to the orders involving Mr. Robleto also petitioned this court for writ of mandate seeking to vacate the August 17, 1994, order and to direct the trial court to deny CBM’s motion to suppress. On September 29, 1994, we issued an order consolidating all seven petitions for all purposes and subjecting all petitions to our alternative writ of mandate issued on September 21, 1994. That alternative writ commanded respondent to vacate its orders of June 27, 1994, August 4, 1994, and August 17, 1994, imposing evidentiary sanctions, or in the alternative, show cause why a peremptory writ of mandate requiring respondent to do so should not issue. Oral argument has been had on the foregoing petitions. We proceed to address the issue of whether the trial court’s orders suppressing evidence constituted abuses of discretion.

I

Standard of Review

“Our Supreme Court has recognized that California courts have inherent powers, independent of statute, derived from two distinct sources: the courts’ ‘equitable power derived from the historic power of equity courts’ and ‘supervisory or administrative powers which all courts possess to enable them to carry out their duties.’ ” (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287 [245 Cal.Rptr. 873].) “The court’s inherent power to curb abuses and promote fair process extends to the preclusion of evidence. Even without such abuses the trial court enjoys ‘broad authority of the judge over the admission and exclusion of evidence.’ . . . [Tjrial courts regularly exercise their ‘basic power to insure that all parties receive a fair trial’ by precluding evidence.” (Id. at p. 288.) “Moreover, there is no intrinsic limitation on the court’s inherent power of evidence preclusion which would enable preclusion in cases of evidence destruction, but leave the court powerless to remedy other forms of litigation abuse. Peat Marwick’s conduct in this case, as the trial court found, has seriously damaged the People’s case. Faced with this sort of abuse of the litigation process, the trial court may act to prevent the taking of an unfair advantage and to preserve the integrity of the judicial system.” (Id. at p. 289.)

The trial court’s factual findings underpinning an order are binding on this court unless unsupported by substantial evidence. (Peat, Marwick, Mitchell & Co. v. Superior Court, supra, 200 Cal.App.3d at p. 277.) However, the trial court’s conclusions of law are not binding on us and are reviewed de nova. (See PJNR, Inc. v. Department of Real Estate (1991) 230 Cal.App.3d 1176, 1183 [281 Cal.Rptr. 673].) The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422 [21 Cal.Rptr.2d 303].) A trial court’s exercise of discretion is “subject to the limitations of the legal principles governing the subject of its action, and subject to reversal on appeal where no reasonable basis for the action is shown.” (Nalian Truck Lines, Inc. v. Nakano Warehouse & Transportation Corp. (1992) 6 Cal.App.4th 1256, 1261 [8 Cal.Rptr.2d 467].)

II

Orders of June 27, 1994 and August 4, 1994 (Robleto)

In light of the factual findings which are set out in the trial court’s June 27, 1994, order, we conclude that there is no reasonable basis for that part of the order conditioning the denial of disqualification on prohibitions against plaintiffs’ use of Robleto as a witness. Attachment of such conditions to the denial of the motion thus constitutes an abuse of discretion. Quite simply, no factual or legal basis has been established on the record before us to support such conditions.

Despite the allegations in the return of real parties in interest that “petitioners have blatantly and intentionally abused the litigation process,” and “the information obtained from Robleto . . . was not otherwise discoverable,” no such findings expressly appear in, or arise by implication from, the June 27 order. Real parties apparently have not sought review of the factual findings in the June 27 order or of that part of the order denying disqualification.

As we interpret the June 27 order, in light of the instant record, the court expressly declined to find that Goldstein violated any rule of professional conduct, or was guilty of misconduct, despite the fact that the disqualification motion asserted that Goldstein violated ABA rules 4.1 and 4.3, and that Goldstein engaged in misconduct in his dealings with Robleto. The June 27 order states: “Mr. Robleto was misled by statements of, or a failure to make relevant disclosing statements by, Mr. Goldstein.” The court did not find that Goldstein knowingly made a false statement of material fact to Robleto (ABA rule 4.1), or that Goldstein stated to Robleto that he was disinterested or that Goldstein knew or reasonably should have known that Robleto misunderstood his (Goldstein’s) role in the matter. (ABA rule 4.3; ante, fn. 1.) Accordingly, we need not decide the issue of whether the ABA Rules apply to California lawyers. The trial court also failed to conclude that the content of Robleto’s statements or deposition testimony was improperly influenced by Goldstein’s conduct.

The most we reasonably can infer from the June 27 order is that Robleto was misled as to Goldstein’s role in the case and because of Robleto’s misunderstanding (or confusion) as to Goldstein’s role, Robleto was willing to talk to him informally about the case. Yet the court expressly found that the information Goldstein obtained from Robleto “would have developed in the case in any event,” was “without any disadvantageous consequences to any party,” and “Disqualifications at this stage of the case for the objected to action would serve no purpose.” We conclude that substantial evidence in our record supports the foregoing findings and conclusion, which are binding on us. Real parties’ assertions to the contrary are unavailing.

To the extent that real parties in interest seek to uphold the June 27 and August 4, 1994, orders on factual claims as to which the evidence was in conflict and which claims were not resolved by the trial court, we are precluded from doing so under established principles of review. (See, e.g., Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39 [283 Cal.Rptr. 271]; Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 974 [219 Cal.Rptr. 381].)

Despite the trial court’s findings and conclusion that disqualification was not warranted, the trial court went on to impose conditions, in the nature of evidence preclusion orders, that are arguably more harsh and severe than disqualification in impacting plaintiffs’ ability to prove their cases. Conceivably, such conditions could have been based on the trial court’s implied finding that Goldstein’s ex parte communication with Robleto constituted a violation of rule 2-100. However, even if we assume to be correct the trial court’s view, as set out in its August 17, 1994, order, that rule 2-100 applies to communications with former employees if the subject of the communication involves the employee’s act or failure to act which may be binding upon or imputed to the corporation, or whose statement may constitute an admission of the corporation for purposes of establishing liability, we would conclude that the trial court’s implied finding that Goldstein’s contact with Robleto violated rule 2-100 constituted an abuse of discretion and was not supported by substantial evidence. Real parties did not contend, or offer any evidence showing, that Robleto was the type of employee falling within the provisions of the Rule as interpreted by the trial court. In other words, even after the depositions of both Robleto and Goldstein, and in their arguments before us now, real parties fail to show that the communications involved any act or omission of Robleto that could be binding on CBM, that could be imputed to CBM to establish its liability in this case, or that any statement of Robleto could constitute an admission on the part of CBM.

In light of the foregoing, we conclude that there is no showing that Goldstein’s ex parte communications with Robleto violated rule 2-100 as interpreted by the trial court. Moreover, neither the factual findings in the June 27 order, nor the reasonable inferences therefrom, are sufficient to support a conclusion that the instant evidence preclusion conditions were imposed to prevent an unfair advantage or to promote fair process. Thus, our record fails to show any reasonable basis for the challenged portions of the orders of June 27, 1994, and August 4, 1994. Accordingly, those portions of the orders imposing such conditions on the denial of the motion to disqualify Goldstein and his law firm constitute abuses of discretion and must be vacated.

Ill

Order of August 17, 1994 (Fleites)

The order of August 17,1994, prohibiting plaintiffs from calling Fleites as a witness at any hearing or trial, is premised on the court’s conclusion that “Plaintiffs’ attorneys contact with Fleites was improper and was in violation of Rule 2-100.” The trial court interpreted paragraph (B)(2) of rule 2-100 (ante, fn. 2) to include a former employee whose act or omission in connection with the subject of the litigation may be imputed to CBM, and that Fleites was such an employee. None of the parties challenge the sufficiency of the evidence to support the trial court’s implied finding that the plaintiffs in this case were asserting theories of liability against CBM which sought to impute Fleites’s acts or omissions to CBM for purposes of establishing CBM’s liability, so this aspect of the rule is not in dispute, and we express no opinion on this issue. The issue in dispute, and which we must resolve, is whether the trial court properly interpreted paragraph (B)(2) of rule 2-100 to apply to former employees of a corporate party represented by counsel. Petitioners contend that the trial court misinterpreted Triple A and rule 2-100, “notwithstanding the plain language of rule 2-100, the drafter’s comments, and case law affirming the right to contact former employees . . . .”

Our research has disclosed that among those jurisdictions that follow ABA rule 4.2 (ante, fn. 2), or a rule functionally identical to that rule (see, e.g., Strawser v. Exxon Co., U.S.A. (Wyo. 1992) 843 P.2d 613, 617, fn. 5 [843 P.2d 613]), there exists a “multifarious split in authority across the country” (id. at p. 618), on the issue of the propriety of ex parte communication with current and former employees of a corporate party. (See also Miller & Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is it EthicaTl (1987) 42 Bus. Law. 1053; Sinaiko, Ex Parte Communication and the Corporate Adversary: A New Approach (1991) 66 N.Y.U. LJRev. 1456.)

Although the issue of the propriety of ex parte contact with former employees of a corporate adversary may be unsettled in other jurisdictions, the pertinent California authorities have been remarkably consistent, to the extent that they have addressed this issue. However, the same cannot be said about the status of the rule with respect to current corporate employees. We briefly set out the development of the rule in California, in the context of the nationwide debate on the issue; such context helps to resolve the issue of the correct interpretation of rule 2-100.

Although not addressing the issue of contact with former employees of a party, the California Supreme Court in Mitton v. State Bar (1969) 71 Cal.2d 525 [78 Cal.Rptr. 649, 455 P.2d 753], articulated the policy underpinning former rule 12 of the Rules of Professional Conduct, which read in part: “ ‘A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel.’ ” (71 Cal.2d at p. 534.) “This rule is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice .... It shields the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided. [<][] The rule was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role. If a party’s counsel is present when an opposing attorney communicates with a party, counsel can easily correct any element of error in the communication or correct the effect of the communication by calling attention to counteracting elements which may exist. Consequently, before any direct communication is made with the opposing party, consent of the opposing attorney is required.” {Ibid.)

As noted by one commentator, the Mitton case acknowledges that one of the reasons for the ethical rule barring ex parte communication is to prevent injurious disclosures: “Thus, an important reason why the ethical rules bar ex parte communication is because statements made by the uncounseled party to an opposing attorney might be offered against that party as admissions in court, thereby seriously damaging [the] case. . . . ‘[T]he lawyer may be required to supervise the manner in which information is elicited to prevent his client from making statements which, through ambiguous use of language, may not accurately or fairly reflect the client’s position.’ Presence of the attorney at the interview allows counsel to perform properly her duty to ensure that her client’s case is presented in the best possible light. [cfl] Although these types of improvident disclosures may injure a corporation just as they may injure an individual, courts and commentators disagree as to the scope of the prohibition on ex parte contact with corporate employees justified by such dangers.” (Sinaiko, Ex Parte Communication and the Corporate Adversary: A New Approach, supra, 66 N.Y.U. L.Rev. 1456, 1471-1472; fns. omitted; hereinafter Sinaiko.)

“In our adversarial legal system, a policy conflict arises when a corporation attempts to use [ABA Model Code Prof. Responsibility, DR 7-104(A)(l); substantially identical to ABA rule 4.2] defensively so as to prevent an adverse attorney from interviewing its employees ex parte. On the one hand, there is the need of the adverse attorney for information which may be in the exclusive possession of the corporation and may be too expensive or impractical to collect through formal discovery. On the other hand is the corporation’s need to protect itself for the traditional reasons justifying the rule.” (Wright By Wright v. Group Health Hosp. (1984) 103 Wn.2d 192 [691 P.2d 564, 568, 50 A.L.R.4th 641].)

Turning to California authorities dealing with the foregoing issues, we note that in Formal Opinion No. 369 issued on November 23, 1977, by a committee of the Los Angeles County Bar Association, the committee interpreted former rule 7-103 of the Rules of Professional Conduct (former rule 7-103), a successor to the rule discussed in Mitton, and the predecessor to rule 2-100. The committee found “nothing unethical in an attorney interviewing a nonmanagement employee of an adverse party who may be a witness without the consent of that party’s attorney,” the relevant test being “the extent to which the employees are ‘closely identified with management of the company.” (See Cal. Compendium on Prof. Responsibility, L.A. County Bar Assn. Formal Opn. No. 369 (Nov. 23, 1977) p. 69 (Formal Opinion No. 369).)

In Formal Opinion No. 369, the issue was also presented as to “whether the prohibitions of the rule should be extended to encompass former ‘controlling’ employees. The Committee recognizes that certain ethical dangers may be posed if the rule is not extended. For example, . . . employees of the company . . . may have received, or had access to, confidential information regarding the company, and probably still have a fiduciary duty to the company not to disclose such confidential information. The rule which prohibits direct communications with an adverse party represented by counsel might be easily evaded if it were held to be inapplicable in this situation. [