The prohibition against communicating âindirectlyâ with a person* represented by counsel in paragraph (a) is intended to address situations where a lawyer seeks to communicate with a represented person* through an intermediary such as an agent, investigator or the lawyerâs client. This rule, however, does not prevent represented persons* from communicating directly with one another with respect to the subject of the representation, nor does it prohibit a lawyer from advising a client concerning such a communication. A lawyer may also advise a client not to accept or engage in such communications. The rule also does not prohibit a lawyer who is a party to a legal matter from communicating on his or her own behalf with a represented person* in that matter.
Full Answer
Rule 4.02âdealing with a represented party. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor âcause or encourageâ another to communicate about the subject of the representation with a person or entity the lawyer âknows to be represented by another lawyerâ without consent of the other lawyer.
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).
[8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances.
The contact must be about the âmatterâ where the opposing party is represented. Rule 2-100 (A). Thus, for example, a lawyer might know another party in a contract negotiation is represented by outside counsel.
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. ...
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.
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.
Consent of the organizationâs 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).
See Rule 1.0 (f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
When dealing with a represented party, care should be taken to respect a partyâs 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.
Rule 4.02âdealing with a represented party. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor âcause or encourageâ another to communicate about the subject of the representation with a person or entity the lawyer âknows to be represented by another lawyerâ without consent of the other lawyer. ...
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 âFirm,â if the lawyer has a conflict of interest and is disqualified, then the entire in-house department is disqualified).
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 âwhose act or omission make the city liableâ without the city attorneyâs consent. Opinion 492 agreed with the city attorneyâs position: â [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 applyâ.
In-House Counsel Ethically Dealing with Represented Parties, Unrepresented Parties, and How to Tell the Difference (in Texas and Model Rule States)
ABA Formal Ethics Opinion 06-443 (August 5, 2006) concludes that it is ethically proper for a lawyer to go around outside counsel to get to in-house counsel. The ABAâs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection.
Thus, sending an email or letter directly to the party and copying the lawyer is still an ethical violation. E.g. Texas State Bar Ethics Committee Opinion 613 (December 2011) (under Rule 4.02, an attorney cannot send an offer to settle to the opposing partyâs counsel and the opposing party).
As a pro se litigant, an attorney plays the role of both counsel and client. Therein lies the problem with Model Rule 4.2: does the restriction upon the attorney (as an attorney) restrict the pro se attorney (as a litigation party) from contacting an adverse party?
The well-known old saying often credited to Abraham Lincoln states that âHe who represents himself has a fool for a client.â. This article will not comment on the advisability of representing yourself in litigation, but will instead discuss the ethical issues that arise when an attorney is either a pro se litigant (representing him or herself) ...
[9] In determining that Rule 4.2 is an identity rule, these jurisdictions found that the legal system benefited from a policy preventing attorneys from using their specialized legal knowledge and skills to influence an adversary, even when both sides were represented by counsel.
A pro se lawyer represents himself or herself as a client . Therefore, the pro se lawyer is prohibited by the literal language of Rule 4.2 from communicating with his or her adversary without the prior consent of his or her adversaryâs lawyer. This reading of Rule 4.2 is consistent with the majority of cases which have dealt with the rule and with all of the ethics opinions which have considered the issue.
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.
However, an attorney who is a pro se litigant is also the attorney representing themselves, and it can be argued that pursuant to Model Rule 4.2, the attorney is ethically prohibited from speaking with an adverse party represented by counsel without âconsent of the other lawyer or is authorized to do so by law or a court order.â.
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 ...
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.
(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.
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 agentâs or employeeâs counsel to a communication will be sufficient for purposes of this rule. [4] The rule does not prohibit a lawyer from communicating ...
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.
If individual in-house counsel is represented separately from the organization, however, consent of that individualâs personal counsel is required before communicating with that individual in-house counsel. [6] Consent of the organizationâs lawyer is not required where a lawyer seeks to communicate with a former constituent of an organization.
Where it is reasonably* apparent to a lawyer who receives a writing* relating to a lawyerâs representation of a client that the writing* was inadvertently sent or produced, and the lawyer knows* or reasonably should know* that the writing* is privileged or subject to the work product doctrine, the lawyer shall:
[1] A lawyer is required to be truthful when dealing with others on a clientâs behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms the truth of a statement of another person* that the lawyer knows* is false. However, in drafting an agreement or other document on behalf of a client, a lawyer does not necessarily affirm or vouch for the truthfulness of representations made by the client in the agreement or document. A nondisclosure can be the equivalent of a false statement of material fact or law under paragraph (a) where a lawyer makes a partially true but misleading material statement or material omission. In addition to this rule, lawyers remain bound by Business and Professions Code section 6106 and rule 8.4.
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.
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.
No, probably not. Most likely there is a conflict of interest, but without knowing the nature of the new civil lawsuit, no one can really conclude one way or the other. An attorney may be disqualified if the former client can show that they had a âdirect professional relationshipâŚin which the attorney personally provided legal advice...
This is a very complicated issue and you should consult an attorney. While all of the advice given previously is excellent, what concerns me is the relationship between you and the "attorney sub". What was the nature of the relationship? Was he or she making a special appearance on behalf of the other...
The fact that he represented you before could create a conflict, but not always one sufficient enough to disqualify him from representing the other party. The original case was criminal, and this one appears to be civil. There may be enough difference in the two that it would be okay.
Californiaâs Rules of Professional Conduct, Rule 3-310 (E) provides that an attorney âshall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.â A former client, therefore, may seek to....
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 âpartyâ broadly. See Rule 2-100 (B) (1)- (2). âPartyâ 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 âmust be interpreted narrowly because âa 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.â 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 âopposingâ party. Hernandez v. Vitamin Shoppe (2009) 174 Cal. App. 4th 1441. The contact must be about the âmatterâ where the opposing party is represented. Rule 2-100 (A).
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.
If so, applying Rule 2-100 (A), the lawyer cannot contact the other partyâs owner directly in order to discuss that contract negotiation unless the other partyâs outside counsel consents. Copying the other partyâs counsel on an email initiating direct contact does not necessarily resolve the issue, although consent to contact can be implied ...
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. 1993â131.