3-504.3. Dealing with unrepresented person. | Nebraska Judicial Branch b. 1979). Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. Police Emps. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. When You Can Contact Others Who Are or Were - New York Legal Ethics [2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyers client and those in which the persons interests are not in conflict with the clients. 25. In this vein, some courts have recognized that third-party claimants are not entitled to communications exchanged among the insured, its counsel, and the insurer.32 Thus, the insurer is often not considered a third-party interloper that destroys the privilege. 1998). 23. Under the Texas Rules, a lawyer cannot encourage another (which would include the client) to contact the other party without violating Rule 4.02(a). Communicating with unrepresented persons poses a . The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. Also, Formal Opinion No. The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. Second, and conversely, the insurer and the insured might jointly argue that their common interest against the third-party claimant is a defensive shield against discovery by that claimant of communications among the insurer, the insured, and their counsel. Advertisements 100 Rule 7.03. When the lawyer knows or reasonably should know that the unrepresented 26. See Rule 1.0(f). : Opinion # 18-03 Use of tracking software in emails or other electronic communications : Opinion # 18-01 Direct communication with government representatives : Opinion # 13-09 This is consistent with Texas State Bar Ethics Committee Opinion 474 (June 1991), where city council, through the city attorneys office, had made a settlement offer for an existing dispute. Pa. 1997) (The interests of the parties need not be identical, and may even be adverse in some respects.). Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. The common interest doctrine is typically invoked in two related circumstances. The parties themselves should not directly communicate with each other and probably should not communicate directly with the other parties attorneys either. Rule 7.01. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2, Rule 4.2: Communication with Person Represented by Counsel. A lawyer may not make a communication prohibited by this Rule through the acts of another. The Rules of Professional Conduct / NYSBA NY Rules of Professional During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. See, e.g., Exp.-Imp. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Even though plaintiffs counsel had not officially withdrawn from representing this plaintiff in the matter, the Texas Supreme Court determined that it was acceptable for defense counsel to meet directly with the plaintiff in part because the plaintiff may have had good reason not to notify his counsel, who was also representing other plaintiffs. Police, 253 F.R.D. PDF Tenth Judicial District (Wake County) District Court Operations . Evaluates third-party injury claims. Corp. v. Monsanto Chem. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 generally does not prohibit outside counsel fromcommunicating ex parte with an opposing partysinside counsel about the subject of the representation. Can we talk? In-house counsel and opponent's lawyer can communicate Can a Lawyer Ethically Partake In Ex Parte Communications With an Just as it is always good practice to have a written engagement letter to establish and clarify any attorney-client relationship, a written agreement can provide evidence to a court that the parties believed that they shared a common legal interest subject to privilege. Without more, this conduct does not violate Rule 4.02 because you do not know the company is represented in this matter. 19. the lawyer knows to be employed . Rule 4.02(c) defines who the client is when the lawyer is representing an organization, and covers material similar to that found in Official Comments to the Model Rules. Rule 4.02dealing with a represented party. Knows is defined in Texas Rules as denot[ing] actual knowledge of the fact in question. While the analysis for privilege and work-product protections is not identical in all respects, the result should be the same in this situation: So long as transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. Rule 3.5-Exec Summary-Redline.pdf - Rule 3.5 Contact with 2000). Adjuster and Attorney Contact With Claimants In Workers' Compensation 07-CV-10945, 2008 WL 2217682, at *3 (E.D. 2d 52, 61 (D. Mass. When You Can Contact Others Who Are or Were Represented by Counsel This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with. Serious drug or alcohol abusers are incapable of keeping their word, and certain attitudes, Members are entitled to six clinical sessions per calendar year. 76 (Am. 32. . Back to Rule | Table of Contents | Next Comment, American Bar Association 163, 171 (S.D.N.Y. Cavallaro v. United States, 153 F. Supp. 4.3 Dealing with Unrepresented Person. The more imminent that litigation appears, the more likely it might be that the attorneys advice is predominately legal in nature. 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. Board of Overseers of the Bar: Attorney Regulation - Maine Bar Rules There is no material difference between Texas Rule 4.02 and Model Rule 4.2 that would affect this ABA analysis, so ABA 06-443 could be persuasive authority in Texas. And, in any event, it is always wise to leave attorneys in charge of any privileged communications because attorneys are usually more careful with such communications. . Negotiates injury settlements with both attorney represented claimants and unrepresented claimants. Compare In re Tex. . Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered Yes, in an opinion that also covered someother issues of concern to in-house counsel. (2) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer's client that the lawyer is disinterested. is doomed to much grief and failure. The trial court agreed, ruling that discovery was permissible. [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. The State Bar Building/Art Collection Contact the North Carolina Default Bar ; United States v. Okun, 281 F. Appx 228, 23132 (4th Cir. To illustrate, suppose you are in-house counsel working on a contract with a company that has in-house counsel, but you are dealing with someone in the Procurement Department who is not a lawyer. Id. (Adopted Aug. 7, 1985, eff. They had no common interest, and indeed, their interests were in conflicteach company wanted to get the best deal from the other company, and to the extent that one succeeded in its goal, the other suffered.); SCM Corp. v. Xerox Corp., 70 F.R.D. To be sure, communications between the plaintiff and the defendant processor on many other issues were probably not privileged because those two parties were actively litigating against each other regarding the defendant processors alleged liability. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. Is in-house counsel fair game for ex parte contact by opposing counsel? See, e.g., Hunydee v. United States, 355 F.2d 183 (9th Cir. SC Rule 4.2 - Communication with person 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. 1997) (accord). To avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. ISBA Ethics Opinions on Communication with Represented Person Communicating with prospective client when that person is represented by another lawyer. endstream endobj startxref There is again a material difference, however. While the. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency's lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. In confirming thata lawyer is generally permitted to communicate with a corporate adversarys in-house counsel about a case in which the corporation has hired outsidecounsel, the Virginia State Bar Associations Standing Committeeon Legal Ethics referred to the purpose of Rule 4.2. or will be emailed to unrepresented parties following the hearing. To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim. 11. For more than a century, Thompson Hine has been committed to excellence on behalf of our clients, our people and the communities in which we live and work. of Ophthalmology, Inc., 106 F.R.D. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. 2007-1 (N.Y. City Bar Assn Jan. 1, 2007) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objectivegood faith belief that in-house counsel is acting as entitys lawyer may communicate with in-house counsel of a party known to be represented by outside counsel). Therefore, it is always imperative for a practitioner to look for precedent in the controlling jurisdiction and, failing that, look for persuasive case law or secondary authorities (like the Restatement) elsewhere. WARMINSTER, PA Todd Savarese is running for Magisterial District Judge in the May 16 primary election to replace the retiring Daniel J. Finello Jr., who has served Warminster and Ivyland since . The lawyer may still communicate with the party about subject matter B. Taking the logic one step beyond the joint defense privilege brings us to the heart of this article: the common interest privilege allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counselbut this time without the requirement of active litigation (in most courts, at least).11 The validity of an assertion of a common interest privilege might not be tested until litigation arises, but the allegedly privileged communications can occur long before any such litigation arises or is even anticipated.12. This is a common situation: codefendants are often in the position of jointly denying that the plaintiff was harmed by anyone at all, but also arguing in the alternative that any harm was caused by the other defendant. In Durham v. Viewed after the fact, however, inferences tend to be in favor the layman. 2002) (rejected common interest privilege because one party was not represented by counsel); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 16. In Opinion 472, the committee addressed the obligations of a lawyer under Model Rule 4.2 (Communicating with Persons Represented by Counsel) and Model Rule 4.3 (Dealing with Unrepresented Person) when a pro se litigant is receiving limited-scope representation, a form of practice permitted under Model Rule 1.2(c). 103, 113 (S.D.N.Y. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. Communications often are not either purely legal or purely not legal in nature. In answering this question, it is important to distinguish between the common interest privilege, which is the subject of this article, and the common interest doctrine, which often arises in coverage disputes. 27. #{}}jc1X6fm;'_9 r:8q:O:8uJqnv=MmR 4 [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. (Rule 4.02 prohibit[s] communications by a lawyer for one party concerning the subject of the representation with persons having a managerial responsibility on behalf of the organization that relates to the subject matter of the representation.). Executive Committee LAWYER ASSISTANCE PROGRAM LAP is a confidential service outsourced to CorpCare Associates, Inc., to help State Bar members with life's difficulties. 2:13-cv-20000-RDP (N.D. Ala. July 6, 2017). After discussing Rules 4.02 and 4.03, the Ethics Committee concluded: No Disciplinary Rule was violated if the attorney advised the client only to request a statement as to his account balance and a written statement of his account, and bring it to him for review, regardless of whether the finance company had in-house or outside counsel, or no attorney. MN Court Rules - Minnesota So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations. The common interest privilege has been tested in cases beyond the M&A context as well. The common interest doctrine is distinct from the common interest privilege because in the former scenario there are not necessarily two separate groups of clients and their respective counsel working toward a common goal in the underlying case. See Restatement (Third) of the L. Governing Laws. His practice primarily focuses on business litigation, financial, insurance, and products liability matters. Family: Wife, Rosemarie; and sons, John (22) and Joseph (17). 1980)). PDF RPC 4.2 COMMUNICATION WITH PERSON REPRESENTED BY A LAWYER Comment Pa. 2012) (similar). PDF MCLE Article: Ex Parte Communications in a Transactional Practice - Milbank See, e.g., First Pac. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. 2019). e (Am. . hbbd```b``"IO L;"'$3\& `5@`vddbHc$?f`{ $:$j6Jqh8Pq $4 407, 417 (N.D. Ill. 2006) (While Noranda and Falconbridge shared a common business interest, they also shared a common legal interest regarding compliance with antitrust and other laws affecting the sale of sulfuric acid.). Rule 4.3 Communicating with an Unrepresented Person* (Rule Approved by the Supreme Court, Effective November 1, 2018) In communicating on behalf of a client with a person* who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. 3. This question might come up in a couple other ways, too:when in-house counsel wants to contact an opponents outside counsel, who must decide whether she can participate in the communication; or whenin-house counsel for one party wants tocommunicate with in-house counsel for another party, when both are represented by outside counsel. . 574, 579 (N.D. Cal. 1985) (identical, not similar interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 609, 634 (M.D. Ret. The messy nature of the real world requires courts to determine whether the legal nature of the communications is salient enough to trigger protection. During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. 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. Finally, remember that the attorney-client privilege is usually a creature of state, not federal, law.35 While the fundamentals of the attorney-client privilege are long settled and uniform among jurisdictions, there are important differences among forums regarding the relatively novel common interest privilege. LEXIS 18417,2002 WL 31106389 (D. Conn. July 19, 2002) (general counsel of a corporation did not constitute a party for purposes of ConnecticutRule 4.2, and protecting attorney-client relationship did not requirebar against ex parte contact); Op. Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. Rule 16. Pretrial Conferences; Scheduling; Management In In re Users System Services, Inc.,[3] however, several plaintiffs were represented by the same counsel and one plaintiff wrote similar letter to defense counsel asking for a meeting to discuss the case. Rule 4.3 Dealing With Unrepresented Person - Comment Rule 4.2 - Communication with Person Represented by Counsel, Pa. R The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. 1987). 764, 1990 U.S. Dist. But including such language in a communication can help support a claim of privilege because such claim will not appear to be merely revisionist, wishful thinking by a litigator. [1] 162 S.W.3d 825, 833 (Tex. This article will examine the nuts and bolts of the common interest privilege. It's time to renew your membership and keep access to free CLE, valuable publications and more. This site uses Akismet to reduce spam. To avoid potential waiver in most (if not all) jurisdictions, it is also a best practice to ensure that the attorneys in a common interest group handle all communications. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Opinion 956 (1/14/13) Topic : Communication with unrepresented party; taking deposition of unrepresented party; deceptive/and/or fraudulent conduct at client's request.