contacting party who is represented by attorney

Rule 4-4.2 prohibits an attorney from contacting a represented party about the subject of the representation without the consent of the party’s attorney. Contact is allowed if “court rule, statute, or contract requires notice of service or service of process” on the party, in which case the party’s attorney must be copied.

Full Answer

Can a lawyer contact the other party directly?

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). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising …

What is the law for contact with a represented person?

Rule 2-100 Communication With a Represented Party. (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. (B) For purposes of this rule, a "party" includes:

Can a lawyer represent the other party as a corporation?

It provides that “a lawyer shall not communicate about the subject of a representation with a party” who the lawyer “knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or the contact …

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

 · The contact must be about the “matter” 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. If so, applying Rule 2-100 (A), the lawyer cannot contact the other party’s owner directly in order to discuss that contract ...

Can I communicate directly with opposing counsel?

The rule permits communications that are “authorized by law.” A lawyer's inability to communicate with an uncooperative opposing counsel or reasonable belief that opposing counsel has withheld or failed to communicate settlement offers is not a basis for direct communication with a represented adversary.

How should considered representation be communicated with a client?

(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.

Can opposing parties talk to each other?

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.

Can defendant contact plaintiff directly?

The short answer is yes. The legal answer is, there is no rule against speaking with an opposing party, but your lawyer would rather you did not for the sake of litigation.

What are the requisites for lawyer and client privilege communication?

No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.

Can a paralegal communicate with an opposing party?

Neither lawyers nor paralegals may communicate with an opposing party who is represented by counsel without the express written permission of opposing counsel.

Can an attorney contact opposing client in Texas?

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who is a party in a legal matter but who does not represent any other party in the matter may communicate concerning the matter directly with a represented adverse party without the consent of the adverse party's lawyer.

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...•

When can a lawyer communicate with someone who already has a lawyer quizlet?

Attorney client privilege only covers confidential communications between the lawyer and client. If it becomes public the privilege is waived.

What happens if privileged information is voluntarily disclosed to a third party?

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.

What is the role of an attorney in a pro se case?

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?

Who said "He who represents himself has a fool for a client"?

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) ...

Why does Rule 4.2 apply to lawyers?

[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.

Can a pro se lawyer represent himself?

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.

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 an attorney speak 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.”.

When You Can Contact Others Who Are or Were Represented by Counsel: Part 1

By Martin I. Kaminsky (Greenberg Traurig) and Maren J. Messing (Patterson Belknap Webb & Tyler)

What Are the Guiding Rules?

The starting point is Rule 4.2 (a) of the New York Rules of Professional Conduct (NYRPC).

What If the Other Party Initiates Contact with You?

The Rule applies regardless of how the possible communication arises. It does not matter if the other party initiates it, requests it, consents to it or tells the lawyer he/she does not feel the need to have his lawyer included.

Does Lawyer Have Duty to Inquire Whether Person Has Counsel?

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).

What is the California Rule of Professional Conduct?

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).

Can a lawyer contact the owner of a contract?

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 ...

Can a non-lawyer contact a lawyer in California?

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.

When You Can Contact Others Who Are or Were Represented by Counsel: Part II

By Martin I. Kaminsky (Greenberg Traurig LLP) and Maren J. Messing (Patterson Belknap Webb & Tyler LLP)

What Rules Apply When the Other Party Is an Entity?

N.Y. Rule 4.2 (a) is clear that a lawyer may not speak about the matter at issue directly with an individual who the lawyer knows is represented by counsel concerning that matter. But, application of the Rule becomes less clear when the other party is a corporation or other entity.

Is the Rule Different for Former Employees?

In New York, former employees are not covered by the No-Contact Rule. Comment 7 to N.Y. Rule 4.2 expressly states that “ [c]onsent of the organization’s lawyer is not required for communication with a former constituent.” Accord Muriel Siebert, 8 N.Y.3d at 506; ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 359 (1991).

When Contact Is Allowed, Are There Things that Cannot Be Discussed?

Protection of privilege and confidentiality is an important purpose of the No-Contact Rule. Therefore, even when a lawyer is permitted to contact an employee of an entity, the lawyer must be careful what information to seek or accept.

What About Communications Directly Between Clients?

The second part of Rule 4.2, expressly authorizes a lawyer to advise his or her client to communicate directly with the client’s adversary or any other person represented by counsel provided that “the lawyer gives reasonable advance notice to the represented person’s counsel.” NYRPC Rule 4.2 (b) (2009).

Does Rule 4.2 Apply to Accessing or Communicating Via Social Media?

The rapid and extensive explosion of social media has invited interest in such platforms as a means to obtain helpful information or even evidence. At the same time, that has spawned questions about whether accessing and using information in or from social media violates the No-Contact Rule.

What is the law of contacts with represented persons?

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 ...

Who is required to authorize direct contact with a represented person?

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.

What should department attorneys be guided by?

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.

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.

What is a represented person?

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.

What is contact rule?

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

When should department attorneys consider the following issues?

Department attorneys should consider the following issues when they analyze the relevant rule of professional conduct regarding communications with represented persons. Whether the Department attorney knows that a person (a defendant, a target, a subject or a witness) is represented by a lawyer. The contact rule only applies where ...

Can a DSS lawyer contact opposing counsel?

The DSS lawyer is correct. 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 talk to you without your attorney's permission?

That is correct - he should not be talking to you without your attorney's permission.

Can a lawyer talk to you directly?

No, they cannot talk to you directly. All communication has to go through the lawyers in order to protect your rights and attorney-client privilege.

Who is responsible for communicating with opposing counsel?

For example, a party who is represented by counsel may not communicate directly to the Judge or opposing counsel. The party’s attorney is responsible for communications with opposing counsel and the Judge, to avoid potential problems. Attorneys can also directly communicate with each other on behalf of their clients.

What is the purpose of attorney-attorney communication?

This method of attorney-attorney communication protects the legal rights of the party while still allowing the party to dictate the course of the case.

Why is communication not effective in family law?

In family law matters, this may not be an effective means of communication, because difficulty communicating is often one of the underlying causes that led the parties to the domestic law matter.

What are the main communications in court?

However, the main communications defined below are party-party, attorney-attorney, or attorney-party ( only if the party is unrepresented).

What is the name of the court filing that includes the party's information?

When a family law (or any type of case) is filed, if the party has an attorney, the attorney will file what is called an appearance. This filing includes the party’s information as well as the attorney’s, and it is made a part of the Court file to put everyone on notice that the party is represented by counsel.

Can parties communicate about children?

Parties certainly often communicate about children and activities, but they can also communicate regarding agreements and dividing property. Consulting with an attorney before directly communicating with the other party is wise to ensure the party’s interests are protected. This could be considered bypass communication (the attorney indirectly communicating with the other party) and should be carefully utilized, but courts usually encourage parties to resolve the matter between themselves, if possible.

Can an attorney communicate with each other?

Attorneys can also directly communicate with each other on behalf of their clients. They can discuss potential settlement agreements, upcoming hearings, and other matters. This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with.