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. Also, a lawyer having independent justification ...
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.
Whose consent is necessary to authorize direct contact with a represented person. 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.
For purposes of the rule on contacts with represented persons, the term "law" may include: 1) a specific statute; 2) a court order; or 3) case law. Several jurisdictions have established by case law a law enforcement investigatory exception to the contact rule in limited circumstances. Department attorneys should be aware under what circumstances ...
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.
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.
297. Overt Communications with Represented Person —Circumstances Not Covered by the Contact Rule ›
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 ...
The contacts rules vary from state to state in how they define a "represented person" when that "person" is an organizational entity . Some states prohibit communications only with those high-level employees who can bind the organization in the matter on which the organization is represented. Other states prohibit communications concerning the matter in representation with persons having managerial responsibility on behalf of the organization. Many states prohibit communications with any person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability. And a number of states preclude contact with a corporate employee or constituent whose statement may constitute an admission on the part of the organization. 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.
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 wishing to interview a witness who is not a party, but who is represented by counsel, must obtain the consent of the witness' lawyer.
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.
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.
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 “He who represents himself has a fool for a client.”. 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) ...
ABA rule 4.2 does not state specifically whether or not it applies to attorneys who are representing themselves. An attorney can argue that when they are a pro se litigant, they are the client and have the right to discuss matters with an adverse party. 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 “consent of the other lawyer or is authorized to do so by law or a court order.” [2]
[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.
New York, Hawaii, District of Columbia and Alaska have all come to the same conclusions as the PBA. [6]
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 adversary’s 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 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.
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).
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 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 ...
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.
Upon learning that Mohr had retained Zbylut and LPS to represent the LLC, Sprengel withdrew $162,000 from the company’s bank account and deposited the funds into her attorney’s trust account. Sprengel then filed an involuntary dissolution lawsuit and a copyright infringement lawsuit against Mohr.
Sprengel and Mohr were each 50 percent members of the LLC. The LLC’s operating agreement appointed Mohr as the “sole manager,” but also provided that neither member had the authority to bind the company without the consent and/or approval of the other.
After the copyright action was resolved, Sprengel filed a malpractice lawsuit against Zbylut and LPS. The lawsuit alleged that although the attorneys agreed to represent the LLC and were paid by the LLC, their real purpose was to further the interests of Mohr to the prejudice of Sprengel and the LLC.
Sprengel asserted that because the LLC had only two 50 percent owners, any attorney representing the LLC also represented the owners individually.
The relationship eventually disintegrated. Mohr informed Sprengel she could not continue to serve as manager unless she began receiving a salary. In response, Sprengel offered to take over managerial duties. Mohr rejected that offer, and began excluding Sprengel from communications regarding the LLC’s business affairs. Sprengel suspected Mohr was using LLC funds for personal expenses.
Further, the evidence demonstrated that Sprengel never had any reason to believe that the LLC’s attorneys were acting to protect her personal interests. Instead, the attorneys “made clear to Sprengel from the outset that their representation to her was adverse in nature” and Sprengel’s interactions with the attorneys, in fact, “were adversarial in nature” from the beginning.
The court noted that Sprengel did not contend that the attorneys’ conduct devalued her share of the company. Instead, the attorneys represented the LLC’s legitimate interests, some of which may have conflicted with Sprengel’s personal interests (including ownership of the copyright to the guidebook). That alone was not enough to form an ...
(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
3. Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.
Similarly, that paragraph does not impose a duty on a lawyer to affirmatively discourage communication between the lawyer's client and other represented persons, organizations or entities of government.
Consent may be implied as well as expressed, as, for example, where the communication occurs in the form of a private placement memorandum or similar document that obviously is intended for multiple recipients and that normally is furnished directly to persons, even if known to be represented by counsel. Similarly, that paragraph does not impose ...
Moreover, this Rule does not prohibit a lawyer from contacting a former employee of a represented organization or entity of a government, nor from contacting a person presently employed by such an organization or entity whose conduct is not a matter at issue but who might possess knowledge concerning the matter at issue.
When you represent a business entity, do you also necessarily represent the shareholders? How about the owners? What if there are just two of them? Representing closely held entities can raise thorny ethics issues for business lawyers. Model Rule 1.13 (a) says that when you represent an organization, your client is the entity. And when you begin the engagement, you certainly intend to represent the business itself — not the shareholders, members or partners (i.e., the entity’s constituents). But down the road, when a dispute develops among those constituents, you may find yourself facing the contention that you have an attorney-client relationship with a constituent, as well.
Model Rule 1.13 (a) says that when you represent an organization, your client is the entity. And when you begin the engagement, you certainly intend to represent the business itself — not the shareholders, members or partners (i.e., the entity’s constituents).