In-house counsel and opponent’s lawyer can communicate, says Va. opinion 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.
[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.
For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.
[2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. [3] The Rule applies even though the represented person initiates or consents to the communication.
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.
This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter.
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.
(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.
A person charged with suborning perjury is guilty only if the person tried to convince a witness to lie under oath. "Suborn" means to cause or bring about. But, the person attempting to induce a witness to lie need not threaten the witness.
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 ...
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...•
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.
If you have called your attorney, left messages, sent emails, and you still haven't heard a response, the best course of action is to send a certified letter to his or her office questioning the failure to communicate and informing them that you are prepared to find a new lawyer if the situation does not improve.
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.
R. Prof. Conduct 4.2 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 to do so by law or a court order.
Attorney client privilege only covers confidential communications between the lawyer and client. If it becomes public the privilege is waived.
As an analogue to Rule 3.1 (which prohibits lawyers from making frivolous claims and contentions), paragraph (d) of this rule prohibits lawyers from making “a frivolous discovery request,” or from failing “to make [a] reasonably diligent effort to comply with a legally proper discovery request.”.
Fairness to Opposing Party and Counsel. A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness ...
Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s abuse of the legal process: disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, or when the lawyer intentionally tampers with a witness, and causes serious or potentially serious injury to a party, or causes significant or potentially significant interference with the outcome of the legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; and, admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1992) (Abuse of Legal Process); id. stds. 6.21-6.24; id. std. 6.31 (Intentional Witness Tampering).
Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed.
Likewise, the American Bar Association Committee on Ethics and Professional Responsibility has opined, as have most state bar associations that have considered the issue, that Rule 3.4 (b) permits lawyers to pay fact witnesses for the income actually lost and expenses actually incurred to prepare for trial testimony.
[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.
As to expert witnesses, a lawyer can lawfully pay a reasonable, noncontingent witness fee.
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.
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) ...
In conclusion, Rule 4.2 (or an analogous rule) likely restricts an attorney who is a pro se litigant from contacting or conversing with an adverse party represented by counsel about the subject matter of a pending litigation.
In this situation, the attorney is not acting as both counsel and client, but is rather is only a client who has retained representation. PBA Opinion 2017-200 found that when an attorney is represented by counsel, Rule 4.2 does not apply, reasoning that Rule 4.2 only applies when an attorney is acting in the role of representing a client ...
PBA stated that: “Rule 4.2 is a “role rule” since by its terms it applies to lawyers only when they are representing clients. It does not apply to lawyers simply because they are lawyers.”. [7] (We note that this seems somewhat at odds with the notion of protecting people from an attorney’s specialized skills).
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.
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 “consent of the other lawyer or is authorized to do so by law or a court order.”.
The first part of ABA Model Rule 8.4 is rather simple: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Subpart (a), emphasis added).
Any litigator knows that some cases drag on for years. Over that length of time, opposing law firms can develop a sort of kinship with each other. In fact, some attorneys make a big production out of calling for “professional courtesy” between opposing firms. Watch out.
This tip is especially important when you’re in a new job. If you’ve worked for multiple attorneys in your career, you know that every single one has their own style and preferences. This is true when it comes to communications with opposing counsel. Some may want you to handle the bulk of the phone calls with opposing counsel.
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. ...
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 ...
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.
But, in the end, it is an unsettled question as to whether the client, herself, can function as the lawyer’s conduit.
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.
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.
In confirming that a lawyer “is generally permitted to communicate with a corporate adversary’s in-house counsel about a case in which the corporation has hired outside counsel,” the Virginia State Bar Association’s Standing Committee on Legal Ethics referred to the purpose of Rule 4.2.