Disciplinary Opinion from the Indiana Supreme Court provides helpful reminder on the scope of the “no contact” rule.

Earlier today I came across this opinion in which the Indiana Supreme Court reprimanded a lawyer who impermissibly communicated with a represented person.  I did so via this post on the Legal Profession Blog.  The factual scenario isn’t dissimilar from a common inquiry topic. So, I thought I’d share the opinion as a helpful reminder on the scope of Rule 4.2, the so-called “no contact rule.”

Ok, here’s the situation:[i]

“Respondent represented ‘Husband’ in ongoing post-dissolution litigation involving Husband’s marriage to ‘First Wife.’ In August 2018, a domestic dispute between Husband and ‘Second Wife’ led to criminal charges against Second Wife and Husband’s petition for marital dissolution from Second Wife. Respondent also represented Husband in this dissolution action.

“Counsel for First Wife issued notice of a deposition of Second Wife. Respondent knew Second Wife was represented by counsel in the dissolution case and in the criminal case; however, neither Respondent nor First Wife’s counsel informed either of Second Wife’s attorneys of the deposition. At the deposition Respondent and First Wife’s counsel elicited incriminating testimony from Second Wife and testimony about subjects relevant to the dissolution case, and Respondent later contacted the prosecutor and provided her with a copy of Second Wife’s deposition.”

Indiana’s rule is the same as Vermont’s.

“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.”

A hearing officer concluded that the lawyer violated the rule. On appeal, the lawyer made three arguments.  Here’s my summary:

  • Lawyer: The deposition was noticed in the case involving First Wife.  Second Wife wasn’t a party to that case.
  • Court: The rule protects “persons” not “parties.”
  • Lawyer: The rule prohibits me from communicating with Second Wife in the matter in which she’s represented. It doesn’t prohibit me from communicating with her in the other matter.
  • Court: You were communicating with Second Wife in both matters. For one, the two matters so overlapped that the deposition was bound to cover both.  In fact, you admitted that you intended to use the deposition in both cases. Not only that, but the rule protects a represented person from uncounseled communications on the “subject of the representation . . . whether the representation involves the same proceeding, a different proceeding, multiple proceedings, or no proceeding at all.”
  • Lawyer: But I was required to protect my client’s interests at the deposition.  Therefore, I was “authorized by law” to communicate directly with Second Wife.
  • Court: Informing Second Wife’s lawyer that the deposition had been scheduled wouldn’t have kept you from doing your job.

I often ask lawyers who contact me with this scenario to tell me the reason they wish they could communicate with the represented person without going through counsel.  Once they hear themselves answer, they understand:[ii] their reason is the exact reason that we have the rule.

[i] For JEB: my parents went away on a week’s vacation!

[ii] Even those who are parents.

Fresh Prince

The No-Contact Rule

When I was a kid, Rick Springfield was all the rage. Singing Jessie’s Girl and playing Dr. Noah Drake on General Hospital will do that.

Image result for dr noah drake

Today, however,  I’m reminded of a Springfield song that I associate with the “couples skate only!” announcement at Skateland.  When it comes to professional responsibility, lawyers would be wise to treat “represented persons” as Springfield did “strangers.”

Don’t talk to them.

Rule 4.2 of the Vermont Rules of Professional Conduct is the “no-contact” rule.  When a lawyer is representing a client, the rule prohibits the lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” There are two exceptions:

  1. the other lawyer consents to the communication; or
  2. the communication is authorized by law.

The rule’s purpose is made clear by Comment [1]:

  • “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, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”

Earlier this month, the Virginia Supreme Court approved Legal Ethics Opinion 1890.  The opinion addresses more than a dozen scenarios that implicate the no-contact rule.

I’ve not blogged often on Rule 4.2.  Nevertheless, the Virginia opinion reminded me that it’s not uncommon for lawyers to ask about the rule’s reach.  Drawing on questions I’ve received at CLEs and from attorneys calling with inquiries, here are a few reminders & resources.

First, the rule applies to any person known to be represented in the matter.  That is, the rule is broader than “parties” and “cases.”  Not often, but I’ve had lawyers ask, “as long as I haven’t filed yet, I can talk to her directly, right?”  Wrong.

Next, here’s one that, in my experience, most lawyers know: “the rule applies even though the represented person initiates or consents to the communication.” Comment [3].  So, if most lawyers know it, why do I mention it?

Because e-mail has a remarkable ability to make all of us do things that we know we shouldn’t do.

I’ve little doubt that nearly every single lawyer reading this post would immediately hang-up if a represented party called.  Do the same with email – don’t reply!

Moving on, the question I receive most often on the no-contact rule involves former employees of a represented organization. Comment [7] is clear: “Consent of the organization’s lawyer is not required for communication with a former constituent.”  While issued before Rule 4.2 was adopted, VBA Advisory Opinion 96-7 reached the same conclusion.

Current employees, however, are a different story.  The rule prohibits direct communication with an employee of a represented organization:

  • who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the authority to obligate the organization with respect to the matter; or,
  • whose act or omission in connection with the matter may be imputed to the organization for the purposes of civil liability.

For more on current employees, check out the VBA Advisory Opinion 06-05.  It draws heavily from Baisley v. Mississquoi Cemetery Association, an opinion in which the Vermont Supreme Court analyzed the relationship between the no-contact rule and V.R.E. 502, the evidentiary rule that establishes the lawyer-client privilege.

A few last tips:

  1. The “authorized by law” exception can cause confusion.  I don’t recall it ever being raised in the context of a disciplinary complaint.  However, in VBA Advisory Opinion 2000-6, the Professional Responsibility Committee concluded that “an attorney who represents a landlord may directly contact a tenant who is represented by an attorney solely for the purpose of the service of the statutory termination of tenancy notice.”
  2. The Virginia opinion advises that the no-contact rule does not prohibit a plaintiff/claimant’s lawyer from direct communication with an insurance adjuster even after a matter has been assigned to insurance defense counsel.  The Vermont Supreme Court held otherwise here, and reaffirmed its holding here.
  3. The Virginia opinion advises that even though parties can communicate directly with each other, the no-contact rule applies to a lawyer who is self-represented. Similarly, in the first decision it ever issued, the old Professional Conduct Board concluded that the no-contact rule “applies to lawyers representing themselves” to the same extent that it applies to lawyers who are representing clients.  I shared my thoughts on the decision here.

That’s it for now.  At least until I can figure out how to incorporate these two into a post on legal ethics:

Image result for luke and laura images

Flashback: is a self-represented lawyer subject to the “no-contact” rule?

Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation without the consent of the person’s lawyer.  Generally, the rule does not prohibit represented persons from direct communication.

So, imagine this scenario:

  • Attorney self-represents in a divorce;
  • Lawyer represents Spouse.

Can Attorney communicate about the divorce with Spouse absent Lawyer’s consent?

For an analysis, flashback to this blog post from December 2016.

SRL

Monday Morning Answers: #67

This week’s answers come to you live from Boston, MA.  I’m preparing to run the Boston Marathon.  Unlike most marathons, Boston seeds its start.  Faster runners up front, with runners organized, more or less, in numerical order.

It appears that I’m not one of the favorites:

IMG_2118

Friday’s questions are HERE.  The answers follow the honor roll.

HONOR ROLL

  • Evan Barquist
  • Penny Benelli
  • Beth DeBernardi
  • Laura Gorsky
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith Kasper
  • Patrick Kennedy
  • Nicole Killoran
  • Deborah Kirchwey
  • Elizabeth Kruska
  • Cristina Mansfield
  • Hal Miller
  • Jim Runcie

Answers

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client; See, Rule 1.5(c) and my blog on the basics of contingent fees.
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Communicating with a represented party.  Specifically, Attorney called to discuss whether by cc’ing her client on an email to opposing counsel she had given opposing counsel permission to contact client directly.  I blogged on the issue HERE.

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • CROWDFUNDING sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

My blog on crowdfunding is HERE.

Question 4

North Carolina gained national attention for an amendment to its rules that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.  

My blog on the issue is HERE.

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

THE PANAMA PAPERS

Monday Morning Answers: Week 48

Today is probably the biggest day in the history of Five For Friday. It’s the day I announce who (if anyone) earned permanent “Honor Roll” status by correctly answering last Friday’s bonus question.

Until then, this week’s answers immediately follow the Honor Roll.  To review the questions first, go HERE.

HONOR ROLL

perfect scores in  BLUE

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Beth DeBernardi, Esq., ALJ, VT. Dept. of Labor (Permanent Honor Roll Status)
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein, Esq.
  • Anthony Iarrapino, Esq.
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com (Permanent Honor Roll Status)
  • Deborah Kirchwey, Esq.
  • Elizabeth Kruska , Marsicovetere Law
  • Jordana Levine, Marsicovetere Law
  • Matthew Little, Esq.
  • Scott Rowland, VLS Class of 2018
  • Kane Smart, Downs Rachlin Martin
  • Ben Traverse, Downs Rachlin Martin

ANSWERS

Question 1

It’s most likely that Web Bugs pose ethical dilemmas for attorneys who:

  • A.  Send emails to opposing counsel.  (See, last Tuesday’s blog post)
  • B.  Review an adverse party’s social media presence
  • C.  Review a juror’s social media presence
  • D.  Use cloud vendors that do not encrypt data at rest

Question 2

Hans called with an inquiry.  I listened, then replied: “one of the first things you need to decide & make clear is whether Luke will be representing you, or, stepping in to represent your clients.  I recommend the former.”

It’s most likely that Hans called while drafting a:

  • A.  Motion to Withdraw
  • B.   Succession Plan.  (For resources, see THIS blog post)
  • C.  Motion to Disqualify
  • D.  Advance Conflict Waiver

Question 3

Attorney called to ask which ethics issues should be on her radar as she transitions to a new job. In particular, issues that are likely to arise more often in the new gig than they arose at her firm. I responded: “first, ask yourself ‘who is the client?.’  That’s often the #1 challenge for lawyers in your position. Be especially aware that the people you work with & for may not always understand that you don’t necessarily represent them.”

Given my response, it’s most likely that Attorney is taking a job as a[n]:

  • A.  judge
  • B.  lobbyist
  • C.  government attorney.  See, Rule 1.13, Comment 9.  For more on a government attorney’s critical need to identify the client, read this post from NAAG
  • D.  law professor

Question 4

Attorney called me with an inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic.

Rule 4.2’s prohibition on communicating with a represented person does not apply to a represented organization’s former constituents.  See, Rule 4.2, Comment [7].

Question 5

I guess this is fitting on Veterans Day. Your job is to fill in the blank.

In a movie’s famous courtroom scene, Lawyer objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  “The objection’s overruled counsel.”
  • Lawyer:  “Sir, the defense ________ objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge:  “The objection’s overruled counsel.”

A few moments later, the court went into recess.  Annoyed with Lawyer, Co-counsel said:

  • “I ______ object? Is that how it works.  Objection. Overruled. No, no, no, no I _______ object. Oh, well if you ______ object, let me take a moment to reconsider.”

What’s the missing word?  In A Few Good Men,  Lieutenant Commander JoAnne Galloway (Demi Moore), strenuously” objected after her first objection was overruled..  Lieutenant Sam Weinberg’s (Kevin Pollak) rejoineder is HERE.

*Permanent “Honor Roll” status for anyone who correctly names the restaurant that Nectar owned before he opened Nectar’s.

Patrick Kennedy and Beth DeBernardi knew that Nectar owned The Lure.  The restaurant was on Williston Road in South Burlington, essentially across the street from where McDonald’s sits now.   I don’t remember The Lure.  My earliest memory is of a Big Burger being on the lot.  Then, for years, it was Burger King. Now it’s an Urgent Care facility. Oh the irony. the-lure