This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with. Likewise, the two defendants presumably would have been able to invoke a joint defense privilege to shield their communications against the plaintiff. It's time to renew your membership and keep access to free CLE, valuable publications and more. Compare Rule 3.4(f). 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) 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. and transmitted in writing. of Cal., 101 F.3d 1386, 1391 (Fed. 4.2 Communication Between Lawyer and Person Represented by Counsel. 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. Cir. There is again a material difference, however. 2005). . 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. Party affiliation: I am cross-filed and will appear on the Republican and Democratic ballots. Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.); see also Dura Global, Techs., Inc. v. Magna Donnelly Corp., No. 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. Ct. App. This is the same material found in Official Comment [4] to Model Rule 4.2. Attorney-client privilege. 26. In re Teleglobe Commcns Corp., 493 F.3d 345, 364 (3d Cir. (b) Notwithstanding the . 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). Oh, I fired my lawyer and other lies frustrated laymen tell. at 44243 (quoting United States v. Am. [2] 974 S.W.2d 97, 104 (Tex. 10. Accordingly, the common interest doctrine can be invoked both offensively (as a sword by the insurer against the insured) and defensively (as a shield by the insurer and the insured jointly against the third-party claimant). Filing Requirements for Advertisements and Solicitation Communications 106 Rule 7.05. 609, 634 (M.D. The new Virginia opinion lines up with several other authorities in confirming thatcontacting in-house counsel can bean ethically-permitted option, even under the no contact rule. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person. Under Rule 4.2, a lawyer may not communicate with a person who is represented by counsel in a matter. . lawyer's word should be his or her bond. See Texas State Bar Ethics Committee Opinion 528 (April 1999) (determining Texas Rule 4.02 did not apply because the person the opposing attorney contacted was not involved in management decisions related to the litigation and will not be a witness who could make the organization vicariously liable because of his statements, acts, or omissions.). Gulf and Cities were obviously not adversaries at the time of the disclosure. Education: 2000). The suitable representative could be an attorney or a non-attorney who has the knowledge, skills and abilities to serve as a representative. To extend the common interests privilege to parties aligned on opposite sides of the litigation for another purpose is not inconsistent with any policy underlying the attorney-client privilege and merely facilitates representation of the sharing parties by their respective counsel.20 Insofar as the plaintiff established that it suffered damages, both it and the defendant processor shared an interest in proving that the defendant manufacturer was liable for some (if not all) of the damages. a. When the lawyer knows or reasonably should know that the unrepresented 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. 2007) ([T]he communication must be shared with the attorney of the member of the community of interest. [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. 3. 2:13-cv-20000-RDP (N.D. Ala. July 6, 2017). In this regard, the authorities have been somewhat inconsistent. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. Depending on the importance of the communication in question, such waiver can result in great harm to a case. 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. Quick Links . Communicating with unrepresented persons poses a . . Given that most pro se litigants are not lawyers and do not understand court rules or the workings of courtrooms and litigation matters, litigating a case against a pro se litigant can be difficult and costly. The same standards that will screen certain parties out of mediation will sometimes make this approach impossible. 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. Pa. 1997) (The interests of the parties need not be identical, and may even be adverse in some respects.). Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.). 30. Comments or inquiries may be directed to: John M. Tanner, Designed by Herrmann Advertising | Branding | Technology. Mass. 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. And the absence of such language is not necessarily fatal to a subsequent privilege claim. United States v. Schwimmer, 892 F.2d 237 (2d Cir. Cavallaro v. United States, 153 F. Supp. 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. 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. of Ophthalmology, Inc., 106 F.R.D. {{currentYear}} American Bar Association, all rights reserved. In both unrepresented and represented cases the claims administrator shall attach a log to the front of the records and information being sent to the opposing party that identifies each record or other information to be sent to the evaluator and lists each item in the order it is attached to or appears on the log. Sys. to deal with the self-represented, and to deal with them efficiently, When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship. Acad. This requirement is not unique to the common interest version of the attorney-client privilege, as all attorney-client communications should be legal in nature to warrant protection from discovery. New York State Bar Association. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 2d 437 (Fla. Dist. Tel. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. 8. Every lawyer (hopefully) knows what the attorney-client privilege is. v. Sealed Air Corp., 253 F.R.D. e (Am. Non-Illinois lawyer sending demand letter to Illinois business on behalf of Illinois resident Opinion #23-02 Division of Fees; Law Firm Partnership and Employment Agreements; Restrictions on Lawyer's Practice: Shareholder agreement requiring departing lawyer's new firm to pay former firm portion of fees earned from former firm clients 2022 Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Police, 253 F.R.D. Model Rule 4.3 addresses the ethics of communicating with unrepresented parties. Having a lawyer for one purpose (or matter) does not mean one has a lawyer for all purposesindeed, when a new matter arises, a party is unrepresented until it makes the deliberate and conscious decision to hire a lawyer. If the procurement officer says, You know, we are getting close to being done on this contract, but before we can finalize it I am going to have to run it past legal, then that company remains unrepresented on that matter so far as you know. Parties who are represented on a limited representation basis are considered unrepresented for purposes of this Rule, unless written notice of the limited representation is provided to the attorney seeking to communicate with such party. 21. burt treated my family and myself with fairness and integrity. She is a member of the Ohio Supreme Courts Commission on Professionalism, a former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of the Ohio State Bar Associations Ethics Committee. draconian supervision of sole and small firm practitioners, and in where 1997) (accord). 652719/2016, 2019 WL 1243089 (N.Y. Sup. (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. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. Sometimes an issue arises just trying to figure out which rule applies. 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. 4.3.Dealing with Unrepresented Person. Yet, in a carefully written opinion, the court recognized that parties can share a common legal interest as to one or more issues while not sharing any such interest as to other issues. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. 1965). 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. 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 fact, defendant had not terminated his representation at the time of the letter, and defendants counsel was not notified of the meeting until months later when the letter was produced in response to a subpoena. [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. In this way, each additional client of the same attorney is not considered a third party who can trigger waiver and thereby destroy the privilege. As noted in the concurrence, this decision was influenced by the fact that the motion to disqualify was not made for several months after the plaintiffs learned of the communication. (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.). The phrase cause or encourage is not found in the Model Rules, and can make a significant difference when the client or Texas lawyer thinks the other lawyer is the problem (as is so often the case). 24. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. 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. 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. 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. only to communication about subject matter A. ABA Formal Opinion 472 (2015) The ABA Standing Committee on Ethics and Professional Responsibility released an ethics opinion addressing the obligations of a lawyer when communicating with a person who is receiving limited-scope representation. She is a member of the Ohio Supreme Courts Commission on Professionalism, a former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of. %PDF-1.7 % With experience, you will be able to identify the 40% or so of cases where such an idea (calling the other party) will not apply. The no-contact rule is to protect uncounseled persons against being taken advantage of by opposing counsel and to safeguard the client-lawyer relationship from interference, the Committee said. . In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. When and to what extent the insurers are entitled to such information varies from jurisdiction to jurisdiction. . This is a short, sweet, yet powerful statement reiterated many times by different committees, sections, and sources within the Florida Bar, with respect . Perhaps most frequently, the privilege can be waived if the communication is shared with a third party, i.e., someone other than the attorney and the client. See Model Rules of Prof'l Conduct r. 4.3. Comment | Table of Contents | Next Rule Rule 4.2. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . 15. 18, 2019) (finding waiver where a client forwarded otherwise-privileged email to third parties); Bousamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (finding waiver where an attorney forwarded otherwise-privileged email to a public relations company). 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. 2007) (noting that members of the community of interest must share at least a substantially similar legal interest). 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. Litig., No. If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. This is not a surprise when viewed through the lens of the attorney-client privilege: when two clients share an attorney, the communications between those clients and counsel are not privileged if a dispute subsequently arises between the clients. 2406, No. Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. The meeting was held. To unpack the common interest privilege, it is useful to analyze each term, starting with the meaning of common., The case law varies regarding the precise meaning of common. At the most restrictive end of the spectrum, some cases indicate that a common interest means an identical interest.13 But other cases state that something less than identical interests can suffice to trigger the privilege.14 In fact, some courts at the most liberal end of the spectrum have recognized that the common interest privilege can apply even where the parties invoking the privilege have adverse interests in some respects.15, One oft-litigated scenario in this area is the situation of arms-length transactions, such as mergers and/or acquisitions (M&A). 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. Back to Rule | Table of Contents | Next Comment, American Bar Association If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. 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. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver.28, Some courts have even suggested that communications qualify for common interest privilege protection only where the attorneys communicate with each other.29 If the clients directly communicate with each other, or if the attorneys for one client group communicate directly with the other client group, the privilege might not survive.30 However, at least one case has indicated that the common interest privilege can apply to communications between an attorney from one client group and a client represented by another attorney who is not actually a party to the communication.31. The claimant considered the offer too low, and the claimants lawyer directly contacted a council member to try to get a better deal. In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. 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. Mun. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is . 1036, 1047 (D. Del. Co., 26 F.R.D. LEXIS 7912, at *14 (E.D. 4.4.Respect for Rights of Third Persons. 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. 2007) (joint venturers complying with new IRS regulation; joint venture was an accounting firm and a law firm working together on behalf of common clients in dealing with IRS regulations); In re Regents of the Univ. See Restatement (Third) of the L. Governing Laws. (Adopted Aug. 7, 1985, eff. 17. See Rule 1.0(f). 11. 103, 113 (S.D.N.Y. . Compare In re Tex. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. 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). Restatement (Third) of the L. Governing Laws. [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. [1] This Rule contributes to the proper functioning of the legal system by protecting 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 uncounselled disclosure of information relating to the representation. Visual Scene itself cited decisions from various federal courts, including the U.S. Courts of Appeals for the Third, Seventh, Ninth, and D.C. Circuits.22 Similar cases can be found in many other courts across the country. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyers client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. The more imminent that litigation appears, the more likely it might be that the attorneys advice is predominately legal in nature. 71 0 obj <> endobj Servs., was careful to require Plaintiff's attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel . Advertisements 100 Rule 7.03. Ct. Mar. . Thus, a relatively low-level employee who regularly consults with the lawyer on the matter would be within the representation under the Model Rule, but not the Texas Rule. 14. Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge . Mun. The city attorney told the labor attorney to cease communicating with city employees whose act or omission make the city liable without the city attorneys consent. 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 . Learn how your comment data is processed. See Discovery Order No. 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. hbbd```b``"IO L;"'$3\& `5@`vddbHc$?f`{ $:$j6Jqh8Pq $4 CBA's Rule 4.3 addresses "communication with an unrepresented person" and can be seen here: Rule 4.3 Communicating with an Unrepresented Person (a) 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.