how should a lawyer handle interactions with third-parties represented by another lawyer

by Rowland Reichel 4 min read

Answer: Supreme Court Rule (SCR) 182 [Model Rule (MR) 4.2] 1 prohibits a lawyer from communicating "about the subject of the representation with a party 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."

Full Answer

Can a lawyer communicate with the represented party about other matters?

The Rule applies not only to parties to pending litigation and administrative proceedings, but also to represented parties to any pending transaction or negotiation. 3 Question No. 4: May the lawyer communicate with the represented party about other matters? Answer: Yes.

Can opposing counsel contact a party who is represented by counsel?

A party who is represented by counsel cannot be contacted directly by opposing counsel unless that party and opposing counsel expressly authorized direct contact.

Can a lawyer represent an adverse party to an employee?

If the organization is an adverse party, however, prior to communicating with any such nonparty employee, a lawyer must disclose to such employee both the lawyer’s identity and the fact that the lawyer represents a party that is adverse to the employee’s employer.

Can a lawyer for one organization contact another regarding a controversy?

For example, the existence of a controversy between two organizations does not prohibit a lawyer for either from communicating with representatives of the other regarding a separate matter.

Can represented clients 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.

What is the rule about simultaneously representing two clients whose interests are adverse?

(a) 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.

Can lawyers talk about their cases with other lawyers?

Under attorney-client privilege, lawyers are not allowed to divulge the details of anything their clients tell them in a court of law. In addition to that, The Duty of Confidentiality protects clients from having their lawyers casually discuss the private details of their case outside of court.

How do you handle an interaction with a difficult lawyer?

Here are eight approaches to better handle the difficult lawyer.Point 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.

What does it mean when a lawyer has a conflict of interest?

A conflict of interest is defined as a conflict between professional duties and private interests, or when there is a conflict between the duty to one client and another. As you know, this term always has a negative connotation, as well it should.

What is the 1.7 rule?

[1] Rule 1.7 is intended to provide clear notice of circumstances that may constitute a conflict of interest. Rule 1.7(a) sets out the limited circumstances in which representation of conflicting interests is absolutely prohibited even with the informed consent of all involved clients.

Can I communicate directly with opposing counsel?

Rule 2-100 of the California Rules of Professional Conduct states that 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 ...

What is considered privileged communication?

privileged communication, in law, communication between persons who have a special duty of fidelity and secrecy toward each other. Communications between attorney and client are privileged and do not have to be disclosed to the court.

Can opposing parties talk to each other?

See Rule 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.

How do you address an opposing counsel?

Never Refer To Counsel In Argument Resist the impulse in Court to address opposing counsel directly – always address through the Court. It will keep you more civil and calmer (and it's what the Court wants anyway).

What do you do when opposing counsel won't respond?

In a nutshell, if opposing counsel isn't responding:Document your repeated efforts at contact, including your statement of the consequence of continued nonresponse.Wait a reasonable amount of time.To be safe, get a court order authorizing direct contact.More items...•

How do you negotiate with opposing counsel?

Negotiating with Belligerent Opposing CounselA few minutes passed before he initiated the fourth call. This time he spoke in a moderated voice, and we resumed our negotiations. ... Remain calm. ... Behave professionally. ... Take a break. ... Seek common ground. ... Express your positive intentions.

What is a concurrent conflict of interest?

The lawyer may not represent a client if there is a concurrent conflict of interest, which means that the representation of one client will be directly adverse to another client; or there is a significant risk that the lawyer will materially limit his responsibilities to a client based on his representation of another ...

What is considered a conflict of interest?

What is a Conflict of Interest? A conflict of interest occurs when an individual's personal interests – family, friendships, financial, or social factors – could compromise his or her judgment, decisions, or actions in the workplace. Government agencies take conflicts of interest so seriously that they are regulated.

What is an example of a conflict of interest?

A purchasing agent hires his brother-in-law to provide vending services to the company lunch areas. An employee starts a company that provides similar services to similar clients as those of her full-time employer. This is especially a conflict of interest if her employer has had her sign a non-compete agreement.

What is a waiver of conflict of interest?

A conflict of interest waiver is a legal document stating that a conflict of interest may be present in a situation, all parties are aware, and steps are being taken to keep things fair and reasonable. Such waivers are required for some legal situations and strongly advisable in others.

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] This rule does not apply to the situation in which a lawyer contacts employees of an organization for the purpose of obtaining information generally ...

What is the proviso to Rule 4.2?

The “authorized by law” proviso to Rule 4.2 (a) is intended to permit government conduct that is valid under this law. The proviso is not intended to freeze any particular substantive law, but is meant to accommodate substantive law as it may develop over time.

Can a lawyer communicate with another lawyer?

(a) During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other person or is authorized by law or a court order to do so.

Can an employee of an organization make binding decisions regarding representation?

If an agent or employee of the organization with authority to make binding decisions regarding the representation is represented in the matter by separate counsel, the consent by that agent’s or employee’s counsel to a communication will be sufficient for purposes of this rule. [4] The rule does not prohibit a lawyer from communicating ...

Can a lawyer obtain information that is otherwise protected?

In making such contact, however, the lawyer may not seek to obtain information that is otherwise protected. [7] This rule also does not preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Can a lawyer advise a client?

In addition, a lawyer is not prohibited from ad vising a client concerning a communication that the client is legally entitled to make, provided that the client communication is not solely for the purpose of evading restrictions imposed on the lawyer by this rule.

Do you need consent for in-house counsel?

If individual in-house counsel is represented separately from the organization, however, consent of that individual’s personal counsel is required before communicating with that individual in-house counsel. [6] Consent of the organization’s lawyer is not required where a lawyer seeks to communicate with a former constituent of an organization.

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. ...

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.

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 Rule 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.

Is consent required for a lawyer to communicate with a former constituent?

Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4 (f).

Can a lawyer evade the requirement of obtaining the consent of counsel by closing eyes to the obvious?

See Rule 1.0 (f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.

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 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.