In Walker v. Apple, Inc., ___ Cal.App.5th ___ (Sept. 28, 2016; pub. ord. Oct. 28, 2016), the Court of Appeal (Fourth Appellate District, Division One) affirmed an order disqualifying a law firm from serving as class counsel in a wage and hour action against Apple.
The law firm represented a certified class in one case against Apple, and the putative class in a second, later-filed case against Apple. Apple moved to disqualify the firm in the second case on the ground that a store manager, who was an unnamed member of the certified class in the first case, would be a critical adverse witness in the second case. Slip op. at 3-6. The trial court granted the motion, and the Court of Appeal affirmed. It reasoned, first of all, that the order granting class certification in the first case rendered this particular unnamed class member (but not necessarily all unnamed class members) the firm's client for conflicts purposes. Id. at 10-15.
Then, the Court concluded that Apple's evidence supported the trial court's holding that in order to advance the class claims in the second case, the firm would have to cross-examine this unnamed class member in a manner that would conflict with her "employment interests." Id. at 15-20. This part of the analysis was highly dependent on the particular facts of the second class case, including the specific arguments to be presented by both sides on liability. Given those facts, automatic disqualification was warranted. Id. at 22-24.
The opinion recognizes that not all unnamed class members automatically become the firm's clients for conflicts purposes (as opposed to other purposes, such as the rule of ethics prohibiting opposing counsel from communicating with represented parties, and the attorney-client privilege). See id. at 10-11. The conclusion that the specific unnamed class member/witness should be considered a firm client for conflicts purposes turned on the fact that the two cases were factually related as well as "additional undisputed evidence regarding [the class member's] identity and likely role in this case." Id. at 11.