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Preliminary Phone Call Disqualifies Attorney

SAN JOSE (CN) - A federal judge disqualified a San Jose attorney from defending a bakery in a racial discrimination suit because the plaintiff consulted with him by telephone before going to court.

The Equal Employment Opportunity Commission sued Peters' Bakery on behalf of Marcela Ramirez, who claims the bakery owner disparaged her with racial and ethnic slurs before firing her.

U.S. District Judge Beth Labson Freeman ruled on Dec. 22 that attorney Robert David Baker could not represent the bakery because Ramirez had sought his advice before suing.

"The consultation did not result in employment, but Mr. Baker was subsequently retained as counsel by defendant," the judge wrote.

Ramirez at first did not realize she had consulted with Baker on the phone; she discovered it when she went through a personal notebook she had kept while researching attorneys. In the notebook she had written down the lawyers' names and phone numbers along with notes about how they seemed to her.

Ramirez had forgotten about the notebook until she gave it to her son by mistake, thinking it was empty, according to the judge's summary of the case.

Once she realized that Baker had given her a consultation, Freeman says, she did not immediately move to disqualify him because she believed that Baker, "as an attorney with a better understanding of his professional obligations, would protect her confidence."

But during the deposition of a third-party witness, Ramirez claims, Baker disclosed information that Ramirez "believed she had relayed in confidence to Mr. Baker during their prior consultation," according to the judge's order.

Ramirez alerted the EEOC, which moved to have Baker disqualified.

The bakery claimed that Baker had never given Ramirez a consultation, and that even if he had, their discussion had been of too preliminary a nature to affect the case.

But Freeman ruled that Ramirez's testimony, which was corroborated by the records of the other law firms listed in her notebook, overrode Baker's uncorroborated claim that he had never consulted with Ramirez. Baker's firm claimed to have no record of the call but acknowledged that not all consulting calls were noted in that record.

The judge found that the consultation could have disclosed confidential information to Baker that would give him and the bakery an unfair advantage.

Peters' Bakery will appeal, Baker said in an email.

The case will be stayed for 30 days, so the bakery can find a new lawyer.

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