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Investigating Attorney Disqualified as Trial Counsel

When the Equal Employment Opportunity Commission (EEOC) sued Bay Club Fairbanks Ranch for discrimination, Bay Club identified Buchalter APC and Mark Koorenny of Koorenny Law Group as its counsel of record. Koorenny had previously served as Bay Club’s general counsel for many years. The EEOC moved to disqualify the former general counsel because of his potential role as a witness in the trial.
Before a federal district court in California, Koorenny acknowledged that he had been an investigator during the company’s internal investigation of the claims alleged in the lawsuit. He met with the alleged harasser and spoke to members of the staff regarding the allegations triggering the investigation. The former general counsel was also admittedly familiar with Bay Club’s “personnel, policies, and procedures” which were potentially relevant to the case. In trying to keep Koorenny as its counsel, Bay Club argued that it would suffer substantial prejudice if Koorenny was prevented from representing the company, that it was unclear whether Koorenny would even testify at trial, and that it had consented to Koorenny’s dual role in the case.
The federal district court sided with the EEOC, disqualifying Koorenny. The court was empowered to “weigh the competing interests of the parties against potential adverse effects on the integrity of the proceeding before it.” As there was little evidence that Koorenny had been actively involved in the litigation, the Buchalter firm had signed all of the pleadings, briefs, and joint motions as well as declarations involving discovery issues, his removal was unlikely to cause undue hardship. Koorenny could still consult with Bay Club and its attorneys without acting as litigation counsel. The court asserted that it was likely that Koorenny would have to testify during the trial. Lastly, the court concluded that Koorenny’s different roles in the case could “create the appearance of impropriety” and negatively impact the proceedings.