can you communicate with an employee who has retained a lawyer

If an employee of a represented organization has retained his own individual lawyer, it is sufficient in most states to obtain the consent of that individual lawyer, notwithstanding the representation of the organization by its own counsel. What constitutes a contact that is "authorized by law."

Full Answer

Can a lawyer communicate directly with a former employee?

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. [4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.

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

Jan 22, 2020 · It is the lawyer's consent, not the client's, that is required to authorize contact with a represented person. If an employee of a represented organization has retained his own individual lawyer, it is sufficient in most states to obtain the consent of that individual lawyer, notwithstanding the representation of the organization by its own counsel.

Can an employee of a represented organization retain his own lawyer?

With respect to any unrepresented former employee, of course, the potentially communicating adversary attorney must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer’s counsel are protected b the privilege (a …

When does a lawyer have to terminate communication with a person?

Apr 18, 2014 · But in more complicated situations, communications through or with the attorney might be necessary. At a minimum, rather than simply ignoring the attorney, it might be wise to respond to the attorney with something like, “We have received your communication, but we will be discussing this directly with our employee.”.

Are discussions with former employees privileged?

California courts have extended attorney-client privilege to some situations involving communication with former employees.May 21, 2018

Can I communicate directly with opposing counsel?

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.Sep 26, 2016

What does Retained mean for a lawyer?

By “retaining” a lawyer, you are establishing an attorney-client relationship with that lawyer. There are several methods for retaining a lawyer, but typically it will require an up-front payment or fee. That fee is commonly referred to as a “retainer,” and is given to the lawyer in return for legal representation.Jul 20, 2020

Can a paralegal communicate with an opposing party?

One of the fundamental ethical rules for lawyers is that they are not supposed to communicate with opposing parties who are represented by counsel. Model Rule 8.4 at least implicitly extends this prohibition to paralegals as it prohibits attorneys from directing others from doing something they are not allowed to do.Aug 27, 2021

Do lawyers have to talk to each other?

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

Can your lawyer talk to the other party?

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.Mar 3, 2020

What does it mean when someone has been retained?

keep, retain, detain, withhold, reserve mean to hold in one's possession or under one's control. keep may suggest a holding securely in one's possession, custody, or control. keep this while I'm gone retain implies continued keeping, especially against threatened seizure or forced loss.

What does fully retained mean?

What Is Complete Retention? Complete retention is a risk management technique in which a company facing a risk or risks decides to absorb, or accept, any and all potential loss rather than transfer that risk to an insurer or other party.

What does being retained mean?

Retain means to hold on to or keep. People who can retain a lot of information are often mistaken for geniuses, but really they just have very good memories. To retain is to keep or maintain, whether in mind, possession or a certain condition.

Should a lawyer communicate with another party whom the lawyer knows is represented by counsel?

(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.

What is the no contact rule in law?

Wolfram's “Modern Legal Ethics,” the no contact rule, as a general proposition, prohibits a lawyer who is representing a client from contacting a party known to be represented by another party. The no contact rule first found its way into the American Bar Association's canons of ethics in 1908.

How do lawyers communicate?

Communicate Clearly and Often It is important to avoid using legal jargon when a lawyer communicates with clients. Using plain language will allow a client to understand the provided information easily. Lawyers should always invite their clients to ask questions and reach out if necessary.Sep 20, 2021

What is contact rule?

The contact rule only governs communications with represented persons about the subject matter for which they are represented.

What is the ABA model rule of professional conduct?

Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct provides: "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 by law to do so by law or a court order." (2002). Department attorneys should be aware that Comment 5 to Model Rule 4.2 provides that " [t]he 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." Although the rule may vary from state to state, each state has adopted a rule of professional conduct that governs communications with represented persons. Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct. Nonetheless, as a general matter, it may be useful to review ABA Committee on Ethics and Professional Responsibility Formal Opinion 95-396, "Communications with Represented Persons" (July 24, 1995), and the Annotated Model Rules of Professional Conduct published by the ABA Center for Professional Responsibility.

Can a lawyer represent a person?

A lawyer who represents a person or entity cannot assert a blanket representation by which that lawyer purports to represent the person or entity on all subjects and all matters. The rule does not govern communications with a represented person concerning matters outside the representation.

Can you contact former employees?

Many states' contacts rules do not prohibit contact with former employees of a represented organization; however, even when communicating with former employees is permissible, the discussion should not include attorney-client privileged information.

What are the Model Rules of Professional Conduct?

The Model Rules of Professional Conduct, and their predecessorDisciplinary Rules , include prohibitions on direct ex parte contact be-tween lawyers and those represented by other lawyers in the matter.1The text of Model Rules of Professional Conduct Rule 4.2 reads:

How does the First Amendment affect government employees?

First, government em-ployees, like ordinary citizens, are protected from adverse state actionfor exercising their right to free speech. A government employer cannotretaliate against an employee who speaks out on a matter of public

What is the permissive view?

Permissive ViewThis view interprets ABA Model Rule of Professional Conduct Rule4.2, and its predecessor, DR 7-104(A)(1) of the Model Code of Profes-sional Responsibility, as prohibiting opposing counsel from communi-cating only with employees in the corporation’s “control group”— i.e.,the most senior corporate managers—without the corporate attorney’sconsent.6This view holds that only the employees with the power tocontrol the corporation may properly be equated with the corporation,

Why are defendant employers most eager to prevent ex parte con-tact with current and former employees who participated in the adverse

This is primarily because the acts or omissions of those employees may impute liability to the defendant employer.

Why is witness testimony important?

Such witness testimony can also be helpful for establishing the emotional distress caused by the unlawful conduct. Current and former employees who worked with your client and ob-served the defendant-employer’s adverse treatment of your client and the effects it had on her are often critical sources of such witness testimony.

What is a nications?

nications” (i.e., communications between you and an employee without getting consent from the defendant-employer’s attor-ney) with current high-ranking employees of the defendant-em-ployer’s organization. These include executive-level employees who can make binding decisions on behalf of the organization.

Does the no contact rule apply to a defendant?

The no contact rule does not apply unless you know that the defendant employer is represented in the matter. Therefore, it is ethical to send an initial communication such as a document preservation letter or a demand letter directly to a current high-ranking employee of the defendant employer. Once a de-fendant employer’s attorney surfaces, however, the no contact rule is triggered.

Is it unethical to instruct a defendant's attorney to not speak with the plaintiff's attorney?

If you are a defendant-employer’s attorney, it is not unethical for you to in struct your client’s current employees not to speak with the plaintiff’s attorneys , unless you reasonably believe that such an instruction might be adverse to a current employee’s

What is the ABA model rule 4.2?

ABA Model Rule 4.2 prohibits you from communicating with a person you know to be represented by another attorney about the subject matter of a representation, unless the opposing at-torney has given consent or you are authorized by law or court order to speak with the person. This is often called the “no con-tact rule.”

Who is Alexis Ronickher?

Alexis Ronickher is a partner with the whistleblower and employment law firm of Katz, Marshall & Banks, LLP, in Washington, D.C. She specializes in representing clients in sexual harassment and whistleblower cases, as well as other employment matters, including civil rights discrimination and retaliation and Title IX violations.  As part of her whistleblower practice, she represents clients pursuing qui tam claims under the False Claims Act and who have submitted whistleblower tips to the S.E.C. under the Dodd-Frank S.E.C. whistleblower program. In 2018, Law360 recognized Ms. Ronickher as a “Rising Star,” just one of five employment lawyers nationally to earn this designation, and in 2017 and 2018 Super Lawyers recognized her as a “Rising Star” for Washington, D.C.

What happens after a lawyer terminates a client relationship?

[1] After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564 [15 P.2d 505].) For example, (i) a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client and (ii) a lawyer who has prosecuted an accused person* could not represent the accused in a subsequent civil action against the government concerning the same matter. (See also Bus. & Prof. Code, § 6131; 18 U.S.C. § 207(a).) These duties exist to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer.

What is the rule of a lawyer?

Subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably* consult with the client as to the means by which they are to be pursued. Subject to Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. Except as otherwise provided by law in a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

What is the duty of undivided loyalty?

The duty of undivided loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed written consent.* Thus, absent consent, a lawyer may not act as an advocate in one matter against a person* the lawyer represents in some other matter, even when the matters are wholly unrelated. (See Flatt v. Superior Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537].) A directly adverse conflict under paragraph (a) can arise in a number of ways, for example, when: (i) a lawyer accepts representation of more than one client in a matter in which the interests of the clients actually conflict; (ii) a lawyer, while representing a client, accepts in another matter the representation of a person* who, in the first matter, is directly adverse to the lawyer’s client; or (iii) a lawyer accepts representation of a person* in a matter in which an opposing party is a client of the lawyer or the lawyer’s law firm.* Similarly, direct adversity can arise when a lawyer cross-examines a non-party witness who is the lawyer’s client in another matter, if the examination is likely to harm or embarrass the witness. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require informed written consent* of the respective clients.

Can a lawyer represent a client without written consent?

A lawyer shall not , without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

What is an other pecuniary interest?

[1] A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14 Cal.Rptr.3d 58]; see also Bus. & Prof. Code, § 6175.3 [Sale of financial products to elder or dependent adult clients; Disclosure]; Fam. Code, §§ 2033-2034 [Attorney lien on community real property].)However, this rule does not apply to a charging lien given to secure payment of a contingency fee. (See Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38 [108 Cal.Rptr.3d 455].)

Can a lawyer enter into a business transaction with a client?

lawyer shall not enter into a business transaction with a client, or knowingly* acquire an ownership, possessory, security or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

Can a lawyer use client information?

lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent,* except as permitted by these rules or the State Bar Act.

Can you communicate with opposing counsel?

I would not advise you to communicate with opposing counsel while you are still represented . Opposing counsel will probably not reply to you, but will most likely forward your communication to your attorney. I would recommend that you speak to your attorney in person, and insist that he or she draft the letter to opposing counsel that you are contemplating sending.

Is it a good idea to speak to an Opp counsel?

In general, it is not a good idea to directly communicate with Opp counsel. First, opp counsel should not respond; second, it sends a message that you are bypassing your atty, which may undermine his work in the case; third, it may be an insult to your atty. 2 found this answer helpful. found this helpful.

Can you talk to an opposing attorney?

There is no rule against your talking to the opposing party, or to the opposing party's attorney. There is a rule, however, that applies to attorneys only, that would prevent opposing counsel from responding to your communication, unless he had permission from your attorney...