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.