here - Butler, Sevier, Hinsley & Reid, PLLC
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 lbutler@bshrlaw.com
901.578.8888
lbutler@bshrlaw.com
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
. lbutler@bshrlaw.com
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)
lbutler@bshrlaw.com
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.
lbutler@bshrlaw.com
Rules of Professional Conduct that govern communication with third parties
4.2: COMMUNICATION
WITH A PERSON
REPRESENTED BY
COUNSEL
4.3: DEALING WITH AN
UNREPRESENTED PERSON
lbutler@bshrlaw.com
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.” lbutler@bshrlaw.com
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.
lbutler@bshrlaw.com
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 . . .” lbutler@bshrlaw.com
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. lbutler@bshrlaw.com
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. . .” lbutler@bshrlaw.com
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 lbutler@bshrlaw.com
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?
lbutler@bshrlaw.com
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]) lbutler@bshrlaw.com
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. lbutler@bshrlaw.com
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?
lbutler@bshrlaw.com
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.” lbutler@bshrlaw.com
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.
lbutler@bshrlaw.com
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
Unrepresented persons whose interests are not in conflict with the client's. lbutler@bshrlaw.com
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]) lbutler@bshrlaw.com
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.
lbutler@bshrlaw.com
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. . . .” lbutler@bshrlaw.com
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. lbutler@bshrlaw.com
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; . . . .
lbutler@bshrlaw.com
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 lbutler@bshrlaw.com
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.
lbutler@bshrlaw.com
