Attorneys communicating with unrepresented persons must be very clear that they do not represent the party and may advise the party only to seek the advice of counsel. However, if an agreement is made, attorneys may communicate with parties to effectuate the completion of same.
Full Answer
Opinion rules that in a letter to an unrepresented prospective defendant in a personal injury action, the plaintiff's lawyer may not give legal advice nor may he create the impression that he is concerned about or protecting the interests of the unrepresented prospective defendant. 2002 Formal Ethics Opinion 6.
Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. [4] A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4 (a).
When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following: – A lawyer shall not state or imply that the lawyer is disinterested. – When the lawyer should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
CPR 138. An attorney representing a party may not send copies of motions to another party he knows has counsel. RPC 15. Opinion rules that attorney may interview person with an adverse interest who is unrepresented and make a demand or propose a settlement.
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.
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.
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.
Paralegals handle a large range of work delegated to them by an attorney. One of the most important duties of a paralegal is communicating with opposing counsel. In any given case, there can be hundreds to tens of thousands of pages of documents to review and exchange with opposing counsel.
(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.
According to Charles W. 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.
Lawyers should communicate with clients clearly and often to ease their fears and keep them informed about their cases. 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 are always communicating with their clients. Sometimes, lawyers communicate more with a tone of voice, a facial expression, a body position, or a lack of contact than with the accompanying words and phrases. Clients often feel angry or anxious after not hearing from their lawyer for a period of time.
This means lawyers must understand how to effectively convey a message while ensuring the recipient understands the intention and the purpose behind the message. Effective communication is about how you say something, why you say it, when you say it, your body language and what you don't say.
As point #1, except that the paralegal attending court is employed by a third-party solicitors' clerk firm. Where the court uses its discretion to allow the paralegal to exercise a right of audience (e.g. allowing a McKenzie Friend to act as advocate)
Paralegals can avoid the unauthorized practice of law (UPL) by becoming familiar with their state's rules. Rules against UPL specify that paralegals (or anyone who is not licensed to practice law) cannot provide attorney-client services to people, among other prohibitions.
The privilege shields from discovery advice given by the attorney to the client as well as communications from the client to the attorney. Voluntary disclosure of privileged communications to a third party results in waiver of the attorney-client privilege unless an exception applies.
Rule 4.3 Dealing with Unrepresented Person. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not: (a) give legal advice to the person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility ...
RPC 193. Opinion rules that the attorney for the plaintiffs in a personal injury action arising out of a motor vehicle accident may interview the unrepresented defendant even though the uninsured motorist insurer, which has elected to defend the claim in the name of the defendant, is represented by an attorney in the matter.
2002 Formal Ethics Opinion 6. Opinion rules that the lawyer for the plaintiff may not prepare the answer to a complaint for an unrepresented adverse party to file pro se.
CPR 296. The attorney for the plaintiff in a domestic case may not make available to the defendant a form waiving the right to answer and other rights, nor may he allow his client to provide such a form to the defendant. ( But see RPC 165)
[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. To avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13 (d).
To avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13 (d). ...
Opinion rules that a criminal defense lawyer or a prosecutor may not interview an unrepresented child who is the alleged victim in a criminal case alleging physical or sexual abuse if the child is younger than the age of maturity as determined by the General Assembly for the purpose of an in-custody interrogation (currently age 14) unless the lawyer has the consent of a non-accused parent or guardian or a court order allows the lawyer to seek an interview with the child without such consent; a lawyer may interview a child who is this age or older without such consent or authorization provided the lawyer complies with Rule 4.3, reasonably determines that the child is sufficiently mature to understand the lawyer’s role and purpose, and avoids any conduct designed to coerce or intimidate the child.
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 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).
See Rule 1.0 (f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
Rule 4-4.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation” (emphasis added). The comment clarifies the restriction: “This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation” (emphasis added).
an attorney needs consent when communicating with the other lawyer’s client. The rule applies when communicating with a private person or an organizational entity. The communication bar applies to officers, managing agents, and employees who are directly involved in the represented matter.
In Florida Ethics Opinion 78-4, the committee concluded that prohibited communications extend to “officers, directors or managing agents” of a private corporation. The committee did not extend the rule to other employees “unless they have been directly involved in the incident or matter giving rise to the investigation or litigation.”
In Opinion 94-4, the Ethics Committee concluded that an attorney who, on behalf of a client, filed suit to collect a credit card debt could communicate with a person about a different matter in litigation. The individual was represented by legal counsel in a separate matter, namely collection violations. In that instance, the committee suggested that the attorney notify opposing counsel that “the attorney intends to deal directly with the person on the litigation case only, and that, regarding the collection violations case, the attorney will limit all communications to the opposing counsel.” The committee further suggested that “ [t]he attorney might consider copying the opposing counsel with the attorney’s correspondence to the person regarding the litigation case, so that there is no question as to the communications made.”
Opinion 09-1 concludes that an attorney must obtain the consent of the government lawyer prior to communicating with a government officer, director, or manager, as well as employees who are directly involved in the matter. The bar extends to public officials or employees whose acts or omissions may be imputed to the state agency.
Permitted communications include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.” 13. Any consideration of what are “permitted communications” must begin with the legal effect of the comments that follow each rule.
The fundamental principle underlying Rule 4-4.2 “Communication with Person Represented by Counsel,” commonly known as the “no contact rule,” is that a lawyer may not communicate with a represented person without the consent of the other person’s lawyer.
Subsection (d) states: "In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.".
Requiring lawyers to clarify their role is central to a system committed to fairness to the unrepresented person. 16 Such notice can alert the person to the risks of seeking advice from opposing counsel without limiting any legitimate advocacy interest of the lawyer. It also would reduce the likelihood of unwitting disclosures.
The Reporter's Explanation of Changes noted " [t]he reason for the initial decision to delete the Model Code prohibition [against advising unrepresented adversaries] was the difficulty of determining what constitutes impermissible advice-giving. ... Although the line may be difficult to draw, it is important to discourage lawyers from overreaching in their negotiations with unrepresented persons." The commentary to ABA Rule 4.3 was modified as well. As explained by the Commission's reporter:
Absent counsel, the layperson must either proceed in ignorance or seek answers to questions from others, including c lerks, judges and, more often than not, from opposing counsel. When the proceeding is in court, it is at least possible that the judge or court personnel could provide direction. This is not possible when counsel has contact with the unrepresented person away from the courthouse, where most interactions occur. In these settings the unrepresented person often looks to opposing counsel for guidance. The following are prototypical situations:
Duties to adversaries are limited because it is assumed that opposing lawyers have the responsibility and ability to effectively research, prepare, and present their clients' cases. Of the more than 50 ethics rules in the current Chapter 20 only three expressly address contact with the unrepresented person.
It may also represent the aspiration that has proven most difficult to attain, due in large part to the lack of access to legal services for a growing number of people. In criminal matters, notwithstanding a right to counsel grounded in the U.S. and Wisconsin constitutions, many accused persons remain unrepresented because they cannot afford to retain private counsel and do not meet prevailing indigency standards. 1 In civil matters, reductions in legal services funding and the gap between available pro bono services and the need for those services make the presence of counsel in many types of cases the exception rather than the rule. 2
The stakes may be high: a criminal conviction, termination of employment, loss of custody of one's children, or a substantial financial burden. To nonlawyers, the language of the law is foreign, the procedures unknown, and the substantive principles beyond their ken. When represented, the layperson can rely on counsel as a guide through the procedural maze, as a protector to caution against disclosing confidential information, and as a counselor to help the layperson make informed choices among available alternative courses of action.
When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following: – A lawyer shall not state or imply that the lawyer is disinterested.
Rule 4.2 states “ [i]n representing a client, a lawyer shall not communicate 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.”
For purposes of this discussion, we will divide witnesses into three general categories. Those are clients, opposing parties, and unrepresented third parties.
In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
A lawyer can never tell a witness to lie under oath. As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.
Thus, communication with some current employees is also permitted. But, if the other side learns of the communication, the lawyer is going to have to carry the burden of showing that the employee is outside the scope of Rule 4.2.
With some exceptions, a lawyer ask a witness not to talk to the other side. A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is: (ii) a relative, employee or agent of a client.
Therefore, the committee recommended that when a lawyer sees indications that the person has received some degree of legal assistance on a case, that the lawyer inquire whether the person is in fact represented by counsel. Such indications include briefs that appear ghostwritten.
As is commonly known, Rule 4.2 (the “no-contact” rule) says that if you “know” that a person is represented by another lawyer in a matter, you may not communicate about the subject of the representation with that person without the other lawyer’s consent. “Knowledge” can be inferred from the circumstances. In its opinion, the committee noted the ...
The committee acknowledged that Rule 4.2 does not include a duty to ask whether a person is represented by counsel. But the committee noted that you cannot evade the no-contact rule by “closing [your] eyes to the obvious.”. Therefore, said the committee, if you suspect a ghostwritten brief, you have to ask. If the person “indicates that yes, ...
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 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, ...
Opinion rules that a lawyer may communicate with a custodian of public records, pursuant to the North Carolina Public Records Act, for the purpose of making a request to examine public records related to the representation although the custodian is an adverse party whose lawyer does not consent to the communication.
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.
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.
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.
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.
The no-contact rule is “to protect uncounseled persons against being taken advantage of by opposing counsel” and to safeguard the client-lawyer relationship from interference, the Committee said. Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee.
Rule 4.2 and its comments describe permissive exceptions including contacts that are authorized by law (such as the constitutional right to petition the government) or a court order, or that don’t relate to the subject of the dispute.
The no-contact rule is “to protect uncounseled persons against being taken advantage of by opposing counsel” and to safeguard the client-lawyer relationship from interference, the Committee said.
Most lawyers have a general understanding of the “no-contact rule” — namely that under state versions of Model Rule 4.2, with a few exceptions, you can’t communicate directly on the subject of the representation with someone you know is represented by counsel.
Therefore, the Committee concluded, the in-house lawyer does not need the protection of the no-contact rule.
an adverse attorney should not communicate without consent with inside counsel who is part of the company’s “constituent” group for the matter –who participated, for instance, in giving business advice or in making decisions that gave rise to the dispute;
5, 2006), says that Model Rule 4.2 “generally does not prohibit” outside counsel from communicating ex parte with an opposing party’s inside counsel about the subject of the representation. See also Restatement (Third) of the Law Governing Lawyers § 100 cmt. [c].
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.
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).
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.
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).
For example, ABA Formal Opinion 07-445 (2007) concluded that, in a civil context, putative class members are not “parties” for purposes of the no-contact rule, and do not become parties until a class including them has been certified. But one must be careful relying on this interpretation; some courts have determined the opposite. See e.g., Dondore v. NGK Metals Corp., 152 F. Supp. 2d 662, 665 (E.D. Pa. 2001); see also, Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981).
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 ...
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.