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Discussing Your Client’s Case
With Third Parties
Interacting with third parties in the course of
representation of a client: an examination of Rules
4.2 and 4.3 of the Rules of Professional Conduct
by
Lara Butler
Butler, Sevier, Hinsley & Reid, PLLC
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901.578.8888
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Interacting with other parties is part of
the regular routine of every attorney.
whether through litigation or transactional work on behalf
of a client, attorneys communicate with:




the client
potential witnesses
family, work colleagues or friends of a client
opposing parties who are not represented by counsel
.
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The Digital Age of Communication
In the digital age, interactions between a lawyer and third parties
occur not only in person, in writing or on the phone. There are
opportunities for communication in multiple formats:
 text message
 email message
 social networking sites (Facebook, LinkedIn, twitter)
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Technological Advances
These technological advances have improved the methods and
ease with which we can communicate. As our ability to
communicate continues to evolve, it is important for attorneys to
have a thorough understanding of the ethical prohibitions on
contacting represented parties, and the rules concerning
communication to those without the benefit of legal
representation.
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Rules of Professional Conduct
that govern communication with third parties
 4.2: COMMUNICATION
WITH A PERSON
REPRESENTED BY
COUNSEL
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 4.3: DEALING WITH AN
UNREPRESENTED PERSON
4.2: COMMUNICATION WITH A 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.”
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
 Purpose (See Comment 1)
To protect 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.
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
What does it mean to communicate in the context of RPC 4.2?
 Communication: The expression or exchange of information
by speech, writing, gestures, or conduct; the process of
bringing an idea to another's perception. Black's Law
Dictionary (9th ed. 2009).
 A lawyer cannot communicate through a third party such as
a private investigator, paralegal, legal assistant, or even
through your own client, in a manner that is prohibited by
the RPC:
 comment [4] to RPC 4.2:“A lawyer may not make a
communication prohibited by this Rule through the acts
of another.” And makes reference to RPC 8.4:
 RPC 8.4(a): “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 . . .”
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
Hypothetical Situation: your client is in your office meeting with
you, and pulls out his cell phone to text or call his wife, so she
can answer a question about the parties’ draft tax return.
Spouse is represented by counsel.
 See comment [4]: “ . . . 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.”
 RPC 4.2., read with the comment, an attorney may advise a
client concerning communication with his or her spouse
 However, 4.2 and 8.4 clearly prohibit directing your client to
communicate with his or her spouse, when that spouse is the
opposing party represented by counsel.
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
 To what types of communication or topics of communication
does RPC 4.2 apply?
 The subject of the representation
 It does not apply to matters not related to the
representation.
 See comment 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, such as additional or different
unlawful conduct not within the subject matter of the
representation. . .”
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
Typical subjects of family law representation:
 Income – opportunities for extra income, increases in
income, decreases in income
 Employment – history, promotions, job changes, firings
 Real estate – the marital residence, the real estate market as
it relates to your efforts to buy and sell property
 Children – where they go to school, how they are doing in
school, whether they are changing schools, discipline issues,
extracurricular activities, religious education, third persons
that a parent allows around a child
 Personal property – buying/selling, acquisition of
 Residence – potential relocation from an area
 Socializing – probably only an issue if there are allegations of
adultery, or that a paramour has been brought around a
third party
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
If most day-to-day matters about which you would
communicate with anyone are the “subject of the
representation” when it comes to divorce litigation, what is a
safe conversation you could have with the opposing party
or a third party in the litigation, who is represented by
counsel?
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
To whom does this rule apply?
 any person who is represented by counsel concerning the
matter to which the communication relates. (see Comment
[2])
When does the rule apply?
 Always: Even when the represented person initiates or
consents to the communication a lawyer must uphold rule
4.2. “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.” (Comment [3])
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
How does a lawyer know if a person is represented by counsel?
 See RPC 1.0(f): "Knowingly," "known," or "knows" denotes
actual awareness of the fact in question. A person's
knowledge may be inferred from circumstances.
 This is important to consider when receiving unsolicited
text messages, email messages or other electronic
communication from individuals who are not readily
identifiable. Be certain about the identity of the person
with whom you are communicating before responding,
as according to the rule knowledge can be inferred from
the circumstances.
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4.2: COMMUNICATION WITH A PERSON
REPRESENTED BY COUNSEL
Consenting to communication with a represented party
 RPC 4.2 prohibits communication with a represented party
“unless the lawyer has the consent of the other lawyer . . .”
 When could you, or when should you, consent to an
opposing attorney communicating directly with your
client?
 What constitutes “consent” – i.e. what must you have
from the attorney representing a person in the litigation to
know that you have the consent necessary to ensure you
are not violating Rule 4.2?
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4.3: DEALING WITH AN UNREPRESENTED
PERSON
“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. When the lawyer knows or reasonably should know that
the unrepresented person misunderstands the lawyer's role in the
matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if the
lawyer knows or reasonably should know that the interests of such a
person are, or have a reasonable possibility of being, in conflict with
the interests of the client.”
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4.3: DEALING WITH
AN UNREPRESENTED PERSON
 Identifying your interests. Always be clear in words, both
written and spoken, and your actions, about the person you
represent and the nature of the lawsuit: “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.” (Comment [1])
 In order 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.
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4.3: DEALING WITH
AN UNREPRESENTED PERSON
There are two situations that the comments to the
rule distinguish:
 unrepresented persons
whose interests may be
adverse to those of the
lawyer's client.
 In this situation the
lawyer is prohibited
from the giving of any
advice, apart from the
advice to obtain
counsel
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 Unrepresented persons
whose interests are not in
conflict with the client's.
4.3: DEALING WITH
AN UNREPRESENTED PERSON
 The importance of assessing the unrepresented person
 Whether a lawyer is giving impermissible advice may
depend on
 the experience and sophistication of the
unrepresented person,
 as well as the setting in which the behavior and
comments occur
 (See Comment [2])
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4.3: DEALING WITH
AN UNREPRESENTED PERSON
Negotiating settlement with pro se parties (see Comment [2])
 4.2 does not prohibit a lawyer from negotiating the terms of a
transaction or settling a dispute when the opposing party does
not have an attorney.
 The lawyer must explain to the party explained that the lawyer
represents an adverse party and is not representing the person
before engaging in any communication in an effort to settle a
dispute. Once this has been accomplished a 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.
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4.1: TRUTHFULNESS IN STATEMENTS
TO OTHERS
“(a) In the course of representing a client, a lawyer shall not knowingly
make a false statement of material fact or law to a third person. . . .”
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4.1: TRUTHFULNESS IN STATEMENTS
TO OTHERS
Lawyers representing family law clients frequently communicate
with:
 family members of the client
 friends of the client
 the client’s employer or work colleagues
 medical or psychological professionals treating or evaluating
the client, or the children of a client
 third party witnesses
Sometimes the lawyer initiates these opportunities for
communication, after the client has consented to the lawyer
communicating with a third person.
At other times these opportunities for communication arise when a
third person initiates the call / email / message at the direction of
the client or voluntarily.
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RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD
PERSONS
(a) In representing a client, a lawyer shall not: (1) use means that
have no substantial purpose other than to embarrass, delay, or
burden a third person or knowingly use methods of obtaining
evidence that violate the legal rights of such a person; . . . .
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RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD
PERSONS
 This rule must be considered by attorneys, and made
clear to support staff, before
 Noticing depositions of third parties
 Contacting third parties by phone, email or mail to gather
information related to your client’s case
 Issuing subpoenas for hearings
 Keeping witnesses advised about the rescheduling or
cancellation of matters
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Lara Butler
Butler, Sevier, Hinsley & Reid PLLC
Lara received her undergraduate degree from Rhodes College in 1990. In 1993,
she received her J.D degree from the University of Memphis, where she was a
member of the Law Review and the recipient of the American Jurisprudence
Award in Contracts I. While in law school, she authored Cowe by Cowe v.
Forum Group, inc.: Wrongful Life and the Dilemma of Comparing Impaired
Existence with Nonexistence. 22:4 Memphis State University Law Review.
Lara concentrates in the area of Domestic Relations, including divorce, child
custody, visitation, child support, juvenile court matters and adoptions. Lara is
also a Tennessee Rule 31 Listed Family Mediator.
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