Morgan, Lewis & Bockius won't be disqualified from representing a hotel company in a California wage-and-hour class action, but a judge, citing his concerns about “troubling circumstances” involving the firm, imposed restrictions on the defense team.

U.S. District Judge William Alsup of the Northern District of California on Monday certified the class in a suit against Interstate Hotels & Resorts Inc. and Interstate Management Co. At the same time, the San Francisco-based judge said Morgan Lewis would be prohibited from cross-examining several would-be witnesses.

Morgan Lewis, which represents the Virginia-based hotel chain, was criticized by Alsup and the plaintiffs attorneys for representing would-be class members at their depositions without obtaining written consent beforehand. The firm, Alsup said, obtained declarations from hotel employees to oppose class certification. Morgan Lewis argued there was no conflict.

William Alsup. Credit: Jason Doiy / Recorder

Alsup, citing the “troubling circumstances” about the origin of the declarations, ordered them struck. He added that the defense counsel will not be allowed to cross-examine at trial or on summary judgment any hotel employees the firm represented. Big Law Business reported this week on the order.

The lead plaintiff, Dina Rae Richardson, a hotel room attendant, will be joined by roughly 350 hourly hotel workers in the class. Richardson, represented by the Matern Law Group of Manhattan Beach, claimed in her suit in the U.S. District Court for the Northern District of California that management required workers to forego breaks and work off-the-clock at the Sheraton Fisherman's Wharf Hotel in San Francisco.

The hotel has denied the allegations and said the claims did not represent a “sweeping” practice that prevented workers from taking lawful breaks.

The Morgan Lewis team, led by partner Jason Mills in Los Angeles, told the court in December that the defense lawyers “evaluated the propriety of the limited representations and concluded there are no conflict in the circumstances.” Mills said the team—which included three associates—“completed the representations professionally and within the limited scope they believed the ethical rules permit.”

Mills added: “Where the circumstances show, at most, an accidental transgression motivated by good intentions, disqualification is not necessary to reinforce to these lawyers the importance of maintaining ethical standards.”

Mills was not immediately reached for comment Wednesday, and Morgan Lewis did not immediately return a message seeking comment.

Alsup declined to disqualify Morgan Lewis from its work for Interstate Hotels, a client for whom the firm first handled a wage-and-hour case in 2014. (Mills told the court in a declaration that the firm has handled “many more” for the hotel company since then.)

Still, Alsup said he was “bothered” by Morgan Lewis' role in representing three would-be class members.

“The foregoing unilateral and one-sided procedure followed by defense counsel bothered the court both because it undercuts the reliability of the resulting declarations and because defense counsel knew they were dealing with employees putatively adverse to their employer and its counsel—employees that Richardson and her counsel sought to represent,” Alsup said.

Alsup said in his order that “defense counsel represented more than one client with at least potentially conflicting interests in this litigation, without obtaining informed written consent beforehand and in violation of” the California rule governing the representation of clients with adverse interests. The judge said Morgan Lewis “could be disqualified entirely from the case as a result.”

Mills, writing in a court filing in December, told Alsup: “Morgan Lewis apologizes to the court for allowing this issue to arise.” And the firm vowed that it had learned from the experience.

“In hindsight, the better practice would have been to obtain, in an abundance of caution, advance written waivers from Interstate and the three former employees, or to have offered separate counsel to the three former employees for representation at their depositions, or to have simply defended the depositions without representing the three former employees,” Mills wrote. “Morgan Lewis will certainly not repeat this conduct, in this court or any other.”