can a lawyer ethically speak to someone who is represented by counsel in tennesseel?

Full Answer

When does a lawyer have to refer a communication to counsel?

Nevertheless, the opinion cautions that, when contact is made, the lawyer must advise the person that, if indeed he/she is represented by counsel, he/she should refer the communication to that counsel. Id. What If the Other Party Initiates Contact with You? The Rule applies regardless of how the possible communication arises.

Can counsel for the witness advise his/her client not to speak to lawyer?

Further, the Committee explained, counsel for the witness can advise his/her client not to speak to the inquiring lawyer without concern that to do so would violate the prohibitions in New York Rules 3.4 (a) (1) and (2) and 8.4 (b) and (d) against suppressing evidence and assisting wrongdoing. Id. Does It Matter If You Don’t Make Contact Yourself?

Can a lawyer communicate with a represented person without a client?

Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4 (a).

Is in-house counsel ethically dealing with represented parties?

In-House Counsel Ethically Dealing with Represented Parties, Unrepresented Parties, and How to Tell the Difference (in Texas and Model Rule States) One set of issues that regularly arises for in-house counsel involves dealing with represented parties, and a different set of issues arise when dealing with unrepresented parties.

Can a lawyer speak against their client?

The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality.

What is unethical for a lawyer?

Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...

What is the ethical duty of a lawyer?

These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

What does it mean to be represented by counsel?

This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances.

What is considered an ethics violation?

What is an ethical violation? In a nutshell, an ethical violation is something that is - spoken, written, actioned - that violates a company's documented code of ethics, mission, vision, values, and culture. We also know that ethical violations laugh in the face of what is considered normal societal behaviour.

What is the most common complaint against lawyers?

Perhaps the most common kinds of complaints against lawyers involve delay or neglect. This doesn't mean that occasionally you've had to wait for a phone call to be returned. It means there has been a pattern of the lawyer's failing to respond or to take action over a period of months.

What is legal consideration in ethical?

Consistency of an ethical principle with the law or self-interest does not mean that it is limited only to what the law or self-interest is the same ethical consideration must be there for the benefit of the others.

What are the four responsibilities of lawyers?

It describes the sources and broad definitions of lawyers' four responsibilities: duties to clients and stakeholders; duties to the legal system; duties to one's own institution; and duties to the broader society.

What are some legal and ethical requirements that an appointed attorney have to consider?

Your appointed Attorney must: act honestly and with care. recognise your right to confidentiality....In relation to financial matters, your Attorney must:keep records and accounts of dealings and transactions.keep your property separate from their own (unless it is owned jointly)More items...•

Can represented parties communicate?

California Rule of Professional Conduct 2-100(A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer. Rule 2-100 defines “party” broadly.

How do you communicate with opposing counsel?

8 Tips for Dealing with Difficult Opposing CounselPoint out Common Ground. ... Don't be Afraid to Ask Why. ... Separate the Person from the Problem. ... Focus on your Interests. ... Don't Fall for your Assumptions. ... Take a Calculated Approach. ... Control the Conversation by Reframing. ... Pick up the Phone.

How should considered representation be communicated with a client?

(a) In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person* the lawyer knows* to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

When communicating with the accused in a criminal matter, must a government lawyer comply with this rule?

When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. ...

When does a lawyer have to terminate communication?

A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule . [9] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, ...

What is the 2002 Ethics Opinion 8?

Opinion rules that a lawyer who is appointed the guardian ad litem for a minor plaintiff in a tort action and is represented in this capacity by legal counsel, must be treated by opposing counsel as a represented party and , therefore , direct contact with the guardian ad litem, without consent of counsel, is prohibited.

What is the purpose of the 2006 Ethics Opinion?

Opinion explores the extent to which a lawyer may communicate with employees or officials of a represented government entity. 2006 Formal Ethics Opinion 19. Opinion rules that the prohibition against communications with represented persons does not apply to a lawyer acting solely as a guardian ad litem.

Who can communicate directly with the pathologist?

RPC 184. Opinion rules that a lawyer for an opposing party may communicate directly with the pathologist who performed an autopsy on the plaintiff's decedent without the consent of the personal representative for the decedent's estate.

Can a lawyer communicate with an adverse corporate party?

Opinion rules that a lawyer may not communicate with an adverse corporate party's house counsel, who appears in the case as a corporate manager, without the consent of the corporation's independent counsel. RPC 132.

Can a lawyer request a court order?

A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. [8] This Rule applies to communications with any person, ...

What is Rule 4.2 in criminal cases?

As explained in NYSBA Opinion 884 (2011), which traces the history of the language, Rule 4.2 is given a more restrictive interpretation in criminal matters than civil matters. The Committee concluded that counsel for a defendant in a robbery case could contact a non-party witness even though he knew the witness had an attorney, distinguishing the issue there from contacting a witness in civil cases. Id. In addition, the Committee reasoned that such a witness can always insist on including his/her counsel in the communication, even if the witness is contacted directly. Id. Further, the Committee explained, counsel for the witness can advise his/her client not to speak to the inquiring lawyer without concern that to do so would violate the prohibitions in New York Rules 3.4 (a) (1) and (2) and 8.4 (b) and (d) against suppressing evidence and assisting wrongdoing. Id.

What does "unless authorized by law" mean?

The phrase “unless authorized … by the law” in Rule 4.2 does not conceal a secret key or otherwise hidden exception. NYRPC Rule 4.2. Rather, it is intended to clear the way for contacts such as lawful service of process, taking of a deposition or requesting documents, and other communications sanctioned or ordered by the court. Id. It also allows, in criminal matters, undercover operations and other such investigations. Id.

What is NYRPC Rule 4.2?

Rule 4.2 prohibits contact when a lawyer “knows” that a person is represented by counsel. NYRPC Rule 4.2. It does not say “has reason to know;” and Rule 1.0 (k) defines knowledge as “actual knowledge of the fact in question.”. NYRPC Rule 1.0 (k).

Does the communication rule apply to litigation?

The Rule applies to communications made in connection with both transactional and litigation matters. Indeed, the Rule may apply even before the matter occurs if the communication is made as to a potential matter and the lawyer knows that that the person he/she is seeking to speak to is represented in that matter by counsel. NYSBA Comm. Prof. Eth., Op. 735 (2001). See, e.g., McHugh v. Fitzgerald, 280 A.D.2d 771, 772 (NY App. Div. 3d Dept. 2001) (“commencement of the litigation is not the criteria for determining whether communication with an adverse party is in derogation of the cited rule”); United States v. Jamail, 707 F.2d 638, 646 (2d Cir. 1983) (the prohibition applies to criminal investigations prior the actual commencement of a proceeding). But, as discussed further below, bar opinions and case law sometimes differentiate between civil and criminal cases and give greater latitude to investigations of possible criminal conduct. NYSBA Comm. Prof. Eth., Op. 884 (2011). See e.g., Gidatex v. Campaniella Imports Ltd., 82 F. Supp. 2d 119, 123 (S.D.N.Y. 1999).

Can a lawyer contact an adverse party?

Lawyers sometimes want to contact a person who is connected with an adverse party or formerly connected with an adverse party in a transaction or litigation. It may surprise you to learn that, while you generally cannot do that, you sometimes can. To avoid problems and complaints you need to understand the rules and the limits and spirit ...

Can counsel create her own attorney-client relationship?

Also, as explained above, counsel may unwittingly have created her own attorney-client relationship with the person involved, with all the attendant duties and responsibilities that entails. Even without that, counsel may have assumed unwanted duties of non-disclosure.

What is the rule for representing a client?

Rule 4.02—dealing with a represented party. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor “cause or encourage” another to communicate about the subject of the representation with a person or entity the lawyer “knows to be represented by another lawyer” without consent of the other lawyer. ...

What is the Texas State Bar Ethics Committee opinion 492?

The ability to make the client vicariously liable was crucial to Texas State Bar Ethics Committee Opinion 492 (June 1992). There, a labor organization employed an attorney to negotiate and resolve workplace issues. The city attorney told the labor attorney to cease communicating with city employees “whose act or omission make the city liable” without the city attorney’s consent. Opinion 492 agreed with the city attorney’s position: “ [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply”.

Why is not giving legal advice important?

The significance of not giving legal advice is that the unrepresented party may claim an attorney-client relationship was created by the giving of such advice. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. Viewed after the fact, however, inferences tend to be in favor the layman. A determination that an attorney-client relationship was created could be devastating both to the in-house lawyer (for ethical and malpractice reasons) and to the client (per Rule 1.09 and the definition of “Firm,” if the lawyer has a conflict of interest and is disqualified, then the entire in-house department is disqualified).

What is in house counsel?

In-House Counsel Ethically Dealing with Represented Parties, Unrepresented Parties, and How to Tell the Difference (in Texas and Model Rule States)

What is significant in Texas Rules 4.02 and 4.03?

Significant in all analyses of Rules 4.02 and 4.03 are the limitations that the lawyer “knows” the other party to be represented in the “subject of the representation,” i.e., the “matter”. “Knows” is defined in Texas Rules as “denot [ing] actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances”. Having a lawyer for one purpose (or “matter”) does not mean one has a lawyer for all purposes—indeed, when a new matter arises, a party is unrepresented until it makes the deliberate and conscious decision to hire a lawyer.

What is Rule 4.02?

Rule 4.02 prohibits speaking with a represented party regardless of who initiates the contact—even if the represented party calls you, you cannot have a substantive discussion without permission of the other lawyer. E.g., In re News America Pub., Inc. [2]

When dealing with a represented party, should care be taken to respect a party's relationship with its attorney?

When dealing with a represented party, care should be taken to respect a party’s relationship with its attorney. When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship.

What does a lawyer counsel?

A lawyer may also counsel his or her client as to the meaning and significance of a communication the client receives directly from another party, whether the communication was received in response to an overture by the client or unsolicited from the other person without prior contact from the client. Assn. of the Bar of the City of N.Y. Formal Op. 2002-3 (2002).

When a lawyer is permitted to contact an employee of an entity, must the lawyer be careful what information to seek or?

Therefore, even when a lawyer is permitted to contact an employee of an entity, the lawyer must be careful what information to seek or accept. Rule 4.2 seeks, among other things, to assure that privileged and confidential information is not obtained by improper means, whether intentionally or unintentionally.

What is the rule in Niesig v. Team I?

There, a lawyer representing a personal injury plaintiff sought to interview an employee of the defendant corporation who had witnessed the accident but was not in a position to render the corporation liable or vicariously liable for it. The Court of Appeals found such contact permissible, setting for the criteria now in N.Y. Comment 1. It de creed that such contact is allowed unless the person is an employee (1) whose conduct in the matter at issue might be binding on the entity, (2) whose acts or omissions would be imputed to the entity for purposes of liability, or (3) whose role was or is to implement the advice of counsel. More recently, in Muriel Siebert & Co. v. Intuit, Inc., 8 N.Y.3d (2007), the Court of Appeals stated the rule as: “ex parte communications with non-managerial employees are permitted, but adversary counsel are prohibited from directly communicating with employees who have the power to bind the corporation in litigation, are charged with carrying out the advice of the corporation’s attorney, or are considered organizational members possessing a stake in the representation.” (For ease of reference, we refer below to such prohibited employees as “Managerial Employees.”)

What is the second part of Rule 4.2?

The second part of Rule 4.2, expressly authorizes a lawyer to advise his or her client to communicate directly with the client’s adversary or any other person represented by counsel provided that “the lawyer gives reasonable advance notice to the represented person’s counsel.” NYRPC Rule 4.2 (b) (2009). It has even been suggested that a lawyer has a duty to advise the client of its right to have such direct communications. ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 362 (1992); Rotunda & Dzienkowski, supra, §4.2-5 at 942.

What is the Court of Appeals' delineation?

The Court of Appeals’ delineation was designed to “safeguard [] against clients making improvident settlements, ill-advised disclosure and unwarranted concessions.” Niesig, 76 N.Y.2d at 368, 370–72. The Court has sought to strike “a balance between protecting represented parties from making imprudent disclosures, and allowing opposing counsel to unearth relevant facts through informal discovery devices *** that have the potential to streamline discovery and foster prompt resolution of claims.” Muriel Siebert, 8 N.Y.3d at 51-11.

What is the legal entity alone?

As a general proposition, when a lawyer is engaged to represent an entity (whether it is a corporation, limited liability company, partnership of any type, trade association or other organization), the client is the entity alone.

When the person to be contacted is an employee of an affiliate of the represented entity rather than the represented entity itself,?

When the person to be contacted is an employee of an affiliate of the represented entity rather than the represented entity itself, a more complex issue is presented . In that situation, the lawyer must determine not only the role of the person to be contacted but also whether his or her employer will be considered to be part of the represented entity. There does not appear to be an ethical opinion specifically addressing the affiliate situation. But, some help is provided by Association of the Bar of the City of New York Opinion 2007-3 (2007) and once again case law is of help. See explanation and discussion in the Kaminsky article supra. This is not always easy to determine; indeed, sometimes the most that can be concluded is an educated guess. Where that is the case (i.e., the connection of the affiliate is not entirely clear), the safest course will be to assume that the person is an employee of the entity being represented by counsel and to apply to that person the same guidelines that apply to actual employees of the represented entity.

What is ethics in brief?

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

What is the California Rule of Professional Conduct?

California Rule of Professional Conduct 2-100 (A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer. Rule 2-100 defines “party” broadly. See Rule 2-100 (B) (1)- (2). “Party” can include organizations and their officers, directors and managing agents, and potentially other employees, as well as potentially in-house counsel. Id. ; Snider v. Superior Court (2003) 113 Cal. App. 4th 1187, 1207-09. However, Rule 2-100 “must be interpreted narrowly because ‘a rule whose violation could result in disqualification and possible disciplinary action should be narrowly construed when it impinges upon a lawyer's duty of zealous representation.’ Id., citing Continental Ins. Co. v. Superior Court (1995) 32 Cal. App. 4th 94, 119. Actual knowledge that the party is represented by a lawyer is required for a violation to be found. Snider , supra, at 1192. However, the party need not be the “opposing” party. Hernandez v. Vitamin Shoppe (2009) 174 Cal. App. 4th 1441. The contact must be about the “matter” where the opposing party is represented. Rule 2-100 (A).

Can a lawyer contact the owner of a contract?

If so, applying Rule 2-100 (A), the lawyer cannot contact the other party’s owner directly in order to discuss that contract negotiation unless the other party’s outside counsel consents. Copying the other party’s counsel on an email initiating direct contact does not necessarily resolve the issue, although consent to contact can be implied ...

Can a non-lawyer contact a lawyer in California?

Direct business-to-business negotiations can resolve a complicated dispute quickly, so long as level heads are committed to resolution. No California legal ethics rule expressly prohibits a non-lawyer client from contacting another party directly, although clients cannot be used as conduits for indirect prohibited contact from lawyers. Put another way, if the person contacting the other party is a lawyer, the California Rules of Professional Conduct come into play. And, if the contact is initiated by a client, the content of that communication cannot originate with or be directed by a lawyer. See California State Bar Formal Opinion No. 1993–131.

Can a lawyer give a second opinion?

Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

Is it unethical to give a second opinion?

Conclusion#N#It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

What is civil law enforcement?

A civil law enforcement investigation is one conducted under the government's police or regulatory power to enforce the law. Once a represented person has been arrested, indicted, charged, or named as a defendant in a criminal or civil law enforcement proceeding, however, prosecutors and government lawyers must comply with this Rule. ...

Does a lawyer's waiver of the right to counsel exempt the prosecutor from the duty to comply with this?

A represented person's waiver of the constitutional right to counsel does not exempt the prosecutor from the duty to comply with this Rule. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order.

Can a lawyer communicate with another lawyer?

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order .

Can a lawyer request a court order?

A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.

Is consent required for an organization's lawyer?

Consent of the organization's lawyer is not required for communication with a former agent or employee.

Can a lawyer make a communication prohibited by this rule?

A lawyer may not make a communication prohibited by this Rule through the acts of another. See RPC 8.4 (a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.

What rule did the whistleblower plaintiff violate?

” ( here at p. 6 ). “Assuming that these communications involved the subject matter of this litigation, counsel for the United States violated Rule 4.2 unless, as addressed below, [the whistle-blower plaintiff’s] contacts with represented persons were ‘authorized . . . by law.'” See MRPC 4.2. Id.

Can a lawyer communicate with another lawyer?

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Should lawyers assume they are being recorded?

One obvious practice pointer: lawyers should assume they themselves are being surreptitiously recorded all the time. This assumption is obviously overbroad and erroneous to some degree, but lawyers might want to err on the side of over-breadth rather than unfortunately too narrow.

Can clients be found to be investigative agents?

In the linked case, U.S. District Court Judge Wilhemina M. Wright (D. Minn.) seems to answer, “Yes.” She seems to suggest that clients can be found to be “investigative agents” of the lawyers, whose communication to an opposing party, might trigger Rule 4.2 violations against the lawyers.

Can a lawyer be a conduit?

But, in the end, it is an unsettled question as to whether the client, herself, can function as the lawyer’s conduit.

Can a lawyer make a communication prohibited by this rule through the acts of another?

We note the confusion and ambiguity in commentary to North Carolina’s Rule 4.2 provides: “A lawyer may not make a communication prohibited by this Rule through the acts of another,” which suggests that lawyers cannot orchestrate client-to-adverary-party communications behind the scenes. But the North Carolina Rule 4.2 commentary immediately goes on to say, “However, parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client or, in the case of a government lawyer, investigatory personnel, concerning a communication that the client, or such investigatory personnel, is legally entitled to make.”