The State Bar Building/Art Collection Contact the North Carolina Default Bar Specifically, Rule 4.3 provides, in part, that when communicating with an unrepresented person on behalf of a client, a lawyer is prohibited from stating or implying that the lawyer is disinterested. Most lawyers have a general understanding of the no-contact rule namely that under state versions of Model Rule 4.2, with a few exceptions, you cant communicate directlyon the subject of the representation with someone you knowis represented by counsel. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. 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. 23. Some judges might use one or more of these terms relatively loosely, without strictly distinguishing among them. Co., 144 Ill. 2d 178, 194 (1991) (finding a common interest in avoiding liability in the underlying suit even though the insureds attorney was not retained by, and did not represent, the insurer). Depending on the importance of the communication in question, such waiver can result in great harm to a case. In In re News America Pub., Inc., supra, the defendant wrote a letter claiming he was no longer represented by any attorney in this matter and asked for a meeting with plaintiffs counsel. . When attorneys communicate with each other subject to a common interest defense privilege, they should also be in the habit of marking their communications as such. Thus, in litigation involving more than two parties, it is conceivable that overlapping alliances can form, each of which is protected by a joint defense or common interest privilegeeven though the members of each privileged group are otherwise opponents. Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.). Communications Exempt from Filing Requirements 108 Rule 7.06. Pa. June 27, 1990) (rejecting application of common interest doctrine because retention of independent counsel signaled that the scope of the shared interest was uncertain), with Waste Mgmt., Inc. v. Intl Surplus Lines Ins. Terminology varies across jurisdictions. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. Advertisements 100 Rule 7.03. When and to what extent the insurers are entitled to such information varies from jurisdiction to jurisdiction. 11. 4 Business Law News The State Bar of California Ex Parte Communications in a Transactional Practice interest,5 but even with such consent, the attorney must addition- ally secure the consent of the separate counsel in order to discuss that matter with the party. Teleglobe, 493 F.3d at 366 ([C]ourts can afford to relax the degree to which clients interests must converge without worrying that their attorneys ability to represent them zealously and single-mindedly will suffer.); Regents, 101 F.3d at 139091 (substantially identical interest in protecting patent). 2d 437 (Fla. Dist. 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. 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. However, a lawyer for a governmental agency is not permitted to communicate directly with a regulated person that is represented in the matter by a lawyer who has not consented to the communications and is not permitted to cause or encourage such communications by other agency employees, and the agency lawyer is obligated to prevent such communications by employees over whom the lawyer has direct supervisory authority. A lawyer may not make a communication prohibited by this Rule through the acts of another. Back to Rule | Table of Contents | Next Comment, American Bar Association Even in the current legal services market, where there is a trend for corporate clients to in-source legal work,many continue to rely on outside help for litigation and other matters, setting upa seeming choicefor an opponents counsel reach out toa companys inside lawyer, orcontact outside counsel. and selecting the appropriate Search Type (e.g., Case Number, Party Name, Business Name, Attorney Name, Attorney Bar Number, Judicial Officer, or Courtroom). 1. Karen is a member of Thompson Hines business litigation group. For example, if a privileged email between an attorney and a client is later forwarded by either the client or the attorney to a third party, then any privilege is typically waived.3 The result of waiver is that the email is subject to discovery by adversaries and might be admissible at trial. ISBA Ethics Opinions by Year | Illinois State Bar Association 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). several similar examples from the Cali fornia Rules of Court that clarify the use of "counsel" by referring to "an unrepresented party." . [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. 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.). Quick Answer: Can an attorney talk to an unrepresented party? Learn how your comment data is processed. The offer of "settlement" by the attorney must avoid the appearance of coercion and should not frighten the unrepresented party. over 70% of litigants are self-represented, any attorney who refuses Negotiating with the Pro Se Party: 5 Strategies for Family Lawyers As such, a quick refresher is in order. 4.3 Dealing with Unrepresented Person. See Restatement (Third) of the L. Governing Laws. In re JP Morgan Chase & Co. Sec. 1146, 1172 (D.S.C. 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. MN Court Rules - Minnesota 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). /content/aba-cms-dotorg/en/groups/tort_trial_insurance_practice/publications/the_brief/2020-21/summer/common-interest-privilege-what-exactly-is-it-when-does-it-apply, Tort Trial and Insurance Practice Section, Summer 2021 | The Duty to Protect from Third-Party Harm. 1979). The Common Interest Privilege: What Exactly Is It, and When Does It Apply? 652719/2016, 2019 WL 1243089 (N.Y. Sup. 2d 52, 61 (D. Mass. Ethics Opinon 1978-6 - SDCBA Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. (b) Notwithstanding the . & Tel. 7. 1965). See Model Rules of Prof'l Conduct r. 4.3. A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable . Rule 4.2 permits a lawyer to contact a represented party directly if the lawyer "is authorized by law to do so." The Comment to the rule states: "Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter." Ultimately, the scope and content of communications with an unrepresented party, and the risk that such communications may be interpreted as legal advice by that party, will vary based on the sophistication, knowledge, and training of the unrepresented opponent. 10. In this regard, the authorities have been somewhat inconsistent. Self-Represented Litigants - Lawyer | Law Society of Ontario For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). 2. Co-client and joint defense/plaintiff privileges. American Bar Association 2008) (noting that common interest privilege allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others). 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. Rule 4.3 and the Difficulties of Dealing with an Unrepresented - NHBA First, when disputes arise between an insurer and an insured as to coverage of an underlying settlement or judgment in favor of a third party, the insurer often seeks discovery of materials shared between the insured and its counsel in the underlying case. By refusing to find waiver in these settings courts create an environment in which businesses can share more freely information that is relevant to their transactions. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. 5-200 (Trial Conduct) 3.4 (Fairness to Opposing Party & Counsel) 5-220 (Suppression of Evidence) 5-310 . Notably, in most jurisdictions, the parties do not need to reasonably anticipate litigation in order to qualify for the common interest privilege.26 Indeed, reasonable anticipation of litigation is usually an element of the work-product doctrine but not the attorney-client privilege. (9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. 2002) (rejected common interest privilege because one party was not represented by counsel); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. This Article is published for general information, not to provide specific legal advice. But there are also additional requirements to bear in mind specific to the common interest flavor of privilege. The Rules of Professional Conduct / NYSBA NY Rules of Professional . Allowing the parties to engage in communications might create a waiver by definition. Attorney Sondra Harris notes: "It is important not to overreach or try to make an agreement 'too good' when . of Ophthalmology, Inc., 106 F.R.D. Va. 2008). Regardless of the specific terminology used by a given court, it seems that all jurisdictions recognize each of these extensions of the attorney-client privilege. 76 cmt. 15. Co., 619 F. Supp. n3kGz=[==B0FX'+tG,}/Hh8mW2p[AiAN#8$X?AKHI{!7, Can We Talk: Communicating with Unrepresented Persons. Adjuster and Attorney Contact With Claimants In Workers' Compensation Ct. App. Ethics Opinions - American Bar Association 17. Such unrepresented parties are known as pro se litigants.. Because this privilege can mean the difference between producing a game-changing document and keeping that document out of an adversarys hands, mastering the elements and nuances of this particular privilege is worth the effort. Georgia Rules of Professional Conduct - State Bar of Georgia How a Lawyer Deals With an Unrepresented Party PDF Guidelines for solicitors dealing with self-represented parties See, e.g., JP Morgan Chase, 2007 WL 2363311, at *4 (Prior to the merger, these organizations stood on opposite sides of a business transaction. Comments or inquiries may be directed to: John M. Tanner, Designed by Herrmann Advertising | Branding | Technology. His practice primarily focuses on business litigation, financial, insurance, and products liability matters. As a technical matter, then, the common interest doctrine appears more reminiscent of the co-client scenario because the single attorney/firm (arguably) represents the interests of both the insured and the insurer against the common third-party adversary. can you communicate with them? - The Law for Lawyers Today Education: In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. L. Inst. United States v. Okun, 281 F. Appx 228, 23132 (4th Cir. Rule 4.02 prohibits speaking with a represented party regardless of who initiates the contacteven if the represented party calls you, you cannot have a substantive discussion without permission of the other lawyer. (b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer . 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. 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. Attorney-client privilege. Copyright 2023 Hunter Law Firm. The meeting was held. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. 2008) ([T]he Third Circuit has not specifically adopted such a stringent approach.); In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. Just as a communication must relate to a common interest among the clients and attorneys, the communication must also relate to a legal interest. [3] The Rule applies even though the represented person initiates or consents to the communication. The common interest doctrine is typically invoked in two related circumstances. Sometimes an issue arises just trying to figure out which rule applies. Committee held that it was improper for an attorney representing a party seeking a divorce to confer with an adverse party for the purpose of persuading the adverse party to . 3-504.3. Dealing with unrepresented person. | Nebraska Judicial Branch 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. Restatement (Third) of the L. Governing Laws. ABA Formal Ethics Opinion 06-443 (August 5, 2006) concludes that it is ethically proper for a lawyer to go around outside counsel to get to in-house counsel. See, e.g., In re Regents of the Univ. Ct. App. The court noted that Rule 4.02 is not determinative of whether counsel should be disqualified for trial, and that under other circumstances, some confirmation of termination (such as a copy of the letter of termination or confirmation from prior counsel) would be appropriate. Sys. The disclaimer "I am only representing your spouse" should be made in virtually every communication to the unrepresented party and should advise the pro se party to hire his/her own attorney. endstream endobj startxref 1985) (identical, not similar interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. One set of issues that regularly arises for in-house counsel involves dealing with represented parties, and a different set of issues arise when dealing with unrepresented parties. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor "cause or encourage" another to communicate about the subject of the representation with a person or entity the lawyer "knows to be represented by another lawyer" without consent of the other lawyer. As for what types of legal interests qualify, compliance with particular laws is an easy example of a purely legal interest.25 Other situations, where both legal and commercial interests are intertwined, present closer calls. Once Lawyer A obtains a court order authorizing the transfer of the active representation to Lawyer B, and presuming Lawyer A has otherwise complied with the written notice requirement set out in Rule 1.17(c) (see Opinion #3), Lawyer A may transfer the current client's client file and prospective responsibility for the representation to Lawyer . 572 (S.D.N.Y. The joint defense version of the attorney-client privilege applies during live litigation, as to both defendants in the same case and defendants in related, but separate, cases.7, Like the co-client version of the attorney-client privilege, the joint defense version appears to have originated in criminal law,8 though both the co-client and joint defense variants of privilege now apply in civil litigation as well.9, In addition, at least some courts recognize a joint plaintiff version of this extended privilege as well, which applies where plaintiffs are pursuing related litigation, whether in the same or different courts.10, Common interest privilege. This same admonition is found in the one and only Official Comment to Texas Rule 4.03. 33. {{currentYear}} American Bar Association, all rights reserved. 31. Likewise, the ABA's Formal Op. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. 4.4.Respect for Rights of Third Persons. In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. 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. 2023 Formal Ethics Opinion 1 | North Carolina State Bar . 1961). The goal of this presentation is to highlight a number of standards that govern the decision-making process and to raise certain specific challenges that may arise, to assist counsel in striking the balance between zealously representing one's client and treating fairly the unrepresented person. . 28. A lawyer may not make a communication prohibited by this Rule through the acts of another. 1996) (patent application); In re Sulfuric Acid Antitrust Litig., 235 F.R.D. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. . The lawyer may still communicate with the party about subject matter B. : Opinion # 18-03 Use of tracking software in emails or other electronic communications : Opinion # 18-01 Direct communication with government representatives : Opinion # 13-09 %%EOF 1985) ([I]t is apparent that Cities did not waive the work product privilege attached to these documents by disclosing the documents to Gulf pursuant to the merger agreement. Communicating with unrepresented persons poses a . The appellate court held that the plaintiff and the defendant processor shared a common interest in showing that the defendant manufacturer was liable for the plaintiffs damages (if any). Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. Back to Rule | Table of Contents | Next Comment, American Bar Association The common interest privilege is an extension of the attorney-client privilege. Committee on Professional Ethics. 308, 310 (N.D. Cal. PDF 2019. Published in The Judges' Journal, Vol. 58, No. 2, Spring 2019 Rule 2-100 Communication With a Represented Party - California Rule 4.3. The inability to direct another to do what the lawyer cannot was discussed in Texas State Bar Ethics Committee Opinion 600 (August 2010), which stated that a government attorney must not only limit his or her own communication with represented parties, but also communication of non-attorneys whom the lawyer directly supervised: [A] lawyer for a Texas governmental agency is not required to limit communications by the agencys enforcement officers who are not subject to the lawyers direct supervisory authority with regulated persons who are represented by lawyers. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 2001), affd, 284 F.3d 236 (1st Cir. They can discuss potential settlement agreements, upcoming hearings, and other matters. Board of Overseers of the Bar: Attorney Regulation - Maine Bar Rules 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.

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