for the purpose of conferring with or advising another lawyer . Paragraph (B) is intended to apply only to persons employed at the time of the communication. Paragraph (a) does not, however, prohibit communication between a lawyer's client and persons, organizations, or entities of government represented by counsel, as long as the lawyer does not cause or encourage the communication without the consent of the lawyer for the other party. See Rule 4.4. [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. 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). A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 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. As amended through July 25, 2022. A lawyer may not, however, make a communication prohibited by this Rule through the acts of another. While it can be quite frustrating to have to deal with lawyers (of all things), this is the profession we have chosen and sometimes we just have to do it (even after going in-house). This Article is published for general information, not to provide specific legal advice. Transactions With Persons Other Than Clients. 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. Conclusion Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who is a party in a legal matter but who does not represent any other . 1.05, (Texas Center for Legal Ethics, 2022) from https://legalethicstexas.com/resources/rules/texas-rules-of-disciplinary-procedure/texas-disciplinary-rules-of-professional-conduct/ (last visited Dec 06, 2022) Previous 1.04 Integration and Concurrent Application of the Rules Next 1.06 Definitions Outline 4 (Am. 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. . 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. Communication 15 Rule 1.04. The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. Consent of the organizations lawyer is not required for communication with a former constituent. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party. (See, e.g., Cal. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Such a member has independent rights as a party which should not be abrogated because of his or her professional status. [3] The Rule applies even though the represented person initiates or consents to the communication. 1.01 Competent & Diligent Representation 1.02 Scope and Objectives of Representation 1.03 Communication 1.04 Fees (amended March 1, 2005) 1.05 Confidentiality of Information 1.06 Conflict of Interest: General Rule 1.07 Conflict of Interest: Intermediary 1.08 Conflict of Interest: Prohibited Transactions 1.09 Conflict of Interest: Former Client Thus a lawyer in another state cannot direct a paralegal or secretary to contact a represented party about the subject of the representation, but can encourage a client do so. [7]In the case of a represented organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. [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. 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. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. A lawyer may not make a communication prohibited by this Rule through the acts of another. . then you know the other party is represented in that matter. Use this button to show and access all levels. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. Your feedback will not receive a response. endstream endobj 2978 0 obj <. [6]A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. Sometimes an issue arises just trying to figure out which rule applies. 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. Rule 4.2 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. [7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Rule 4.02dealing with a represented party. 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. 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. This reasoning relies heavily on the fact that the client did not have advice of counsel in deciding to fire his lawyer. (2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. Bar Ass'n); see also ABA Comm. This form only gathers feedback about the website. Comments or inquiries may be directed to: John M. Tanner, Designed by Herrmann Advertising | Branding | Technology. 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. App. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline. In addition, the Commission considered the national standard of ABA Model Rule 4.2 (concerning communications with a represented person) and the . [1] Aguilar held that an attorneys contact with an expert retained by opposing counsel (whom the attorney actually hired to serve as his own expert witness, effectively depriving the opposition of its expert) not only violated Rule 4.02(b), but also that it constituted sanctionable discovery abuse under Texas Rule of Civil Procedure 215.3. 2022 American Bar Association, all rights reserved. /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. Texas Rule 4.02(c) prohibits contact with employees with managerial responsibility regarding the matter of representation and employees whose acts or omissions would make the company vicariously liable. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. SeeRule 8.4(a). This page is located more than 3 levels deep within a topic. [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. avoid any communication with the adverse party that in the circumstances would constitute "conduct involving dishonesty, fraud, deceit or misrepre-sentation" in violation of Rule 8.04(a)(3). 4. Massachusetts rules of court and standing orders, Massachusetts Supreme Judicial Court Rules, Supreme Judicial Court Rule 3:07: Rules of Professional Conduct, Comment amended July 13, 2022, effective October 1, 2022, Rules of Professional Conduct (SJC Rule 3:07) Table of contents, Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel. You skipped the table of contents section. . In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the . is required or permitted by the Texas Disciplinary Rules of Professional Conduct or o ther law. [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. CompareRule 3.4(f). . ), Subparagraph (C)(2) is intended to permit a member to communicate with a party seeking to hire new counsel or to obtain a second opinion. 493]. [2] This rule does not prohibit communication with a person or party, or an employee or agent of an organization, concerning matters outside the representation. hbbd``b`$@H0$6TG1&Fn @ *q A lock icon ( The trial court denied defense counsels motion to disqualify plaintiffs counsel, but the Texas Court of Appeals reversed (relying on ABA Formal Ethics Opinion 95-396) and held that if retained counsel has entered an appearance in a matter, whether civil or criminal, and remains counsel of record, with corresponding responsibilities, the communicating lawyer may not communicate with the person until the lawyer has withdrawn her appearance. [1] This rule covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. ) or https:// means youve safely connected to the official website. endstream endobj startxref Rule 4.02dealing with a represented party. 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. Some page levels are currently hidden. Consent of the organizations lawyer is not required for communication with a former constituent. Other applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law. 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. Fees 16 Rule 1.05. A persons knowledge may be inferred from circumstances. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . As used in paragraph (A), "the subject of the representation," "matter," and "party" are not limited to a litigation context. Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule. [9]In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyers communications are subject toRule 4.3. 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. Nevertheless, a lawyer may not orchestrate a communication between a client and a represented person in an effort to circumvent this rule. . This same admonition is found in the one and only Official Comment to Texas Rule 4.03. 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. 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.). (See, e.g., rules 1-400 and 3-310.) This violated Rule 4.02, even though the party was a municipality. The differences highlight areas of disciplinary emphasis that Texas lawyers should be aware of at all times, and especially when dealing with attorneys from other states. Another aspect of the problem arises when a party claims that it no longer has a lawyer in a matter. Rule 4.3 Downloads (1) Communications with a public officer, board, committee, or body; or, (2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice; or. An official website of the Commonwealth of Massachusetts, This page, Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel, is, Adopted March 26, 2015, effective July 1, 2015. This Rule allows a lawyer to pay for advertising and communications, including the usual costs of printed or online directory listings or advertisements, television and radio airtime, domain-name registrations, sponsorship fees, and group advertising. Morales. Rule 4.2 of the Minnesota Rules of Professional Conduct (MRPC) governs communication with persons represented by counsel:Ftn1 In representing a client, a lawyer shall not 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 At that point, you need to cut off the conversation immediately until you get the lawyers permission to speak directly to the other party. Rule 2-100 also addresses the situation in which member A is contacted by an opposing party who is represented and, because of dissatisfaction with that party's counsel, seeks A's independent advice. See Rule 8.4(a). A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. [2]This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. %PDF-1.5 % 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 . [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 confidential information relating to the representation. 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. Rule 4.03dealing with an unrepresented party. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. Opinion 492 agreed with the city attorneys position: [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply. Do not include sensitive information, such as Social Security or bank account numbers. 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. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably . SeeRule 4.4. 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. This is because the client is the principal and the lawyer is the agent, thus as a matter of law the lawyer cannot direct the client to do anything. 0 the lawyer knows to be employed . Similarly, Texas State Bar Ethics Committee Opinion 488 (December 1992) involved a dispute (but not litigation) between a client and a finance company. Dealing With Unrepresented Person 81 . A lawyer's conduct should conform to the requirements of the law, both in professional . Information About Legal Services, Chapter 8. (Amended by order of Supreme Court, operative September 14, 1992.). The Commission for the Revision of the Rules of Professional Conduct ("Commission") evaluated current rule 2-100 (Communication With a Represented Party) in accordance with the Commission Charter. Corporate Counsel Section, State Bar of Texas - Spring-II Edition 2013 Newsletter. 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. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the . Subparagraph (d) of Rule 4.02 makes it clear that a lawyer can discuss a matter with a represented party when the party is essentially seeking a second opinion. In this regard, the authorities have been somewhat inconsistent. Back to Texas Disciplinary Rules of Professional Conduct (a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is . Confidentiality of Information 22 . Under the Model Rule 4.2, Official Comment [7] does not use the term managerial authority, but rather prohibits communications with one who supervises, directs or regularly consults with the organizations lawyer concerning the matter. The Rule applies even though the represented person initiates or consents to the communication. for Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel, to Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel. Top-requested sites to log in to services provided by the state. PROPOSED RULE OF PROFESSIONAL CONDUCT 4.2 (Current Rule 2-100) . Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made. 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. A determination that an attorney-client relationship was created could be devastating both to the in-house lawyer (for ethical and malpractice reasons) and to the client (per Rule 1.09 and the definition of Firm, if the lawyer has a conflict of interest and is disqualified, then the entire in-house department is disqualified). Ct. Civ. 2985 0 obj <>/Filter/FlateDecode/ID[<43B82C1BBF0B294AB82FAEC86B68FC13><9351F191F1BC8646801E95D4B1CE2372>]/Index[2977 15]/Info 2976 0 R/Length 59/Prev 784536/Root 2978 0 R/Size 2992/Type/XRef/W[1 2 1]>>stream 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. Mass.gov is a registered service mark of the Commonwealth of Massachusetts. 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. 2977 0 obj <> endobj 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. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. Per Official Comment 2 to Texas Rule 4.02, consent to direct contact may be implied from the circumstances. APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT: ER 4.2 Communication with Person Represented by Counsel. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. The significance of not giving legal advice is that the unrepresented party may claim an attorney-client relationship was created by the giving of such advice. This is the same material found in Official Comment [4] to Model Rule 4.2. [8]The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. 2005). Why Contact Current and Former Employees of a [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. 1.03 Communication 12 1.04 Fees 13 1.05 Confidentiality of Information 19 1.06 Conflict of Interest: General Rule 25 . Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. . Rule 1.03 - Communication. For example, counsel could prepare and send written default notices and written demands required by such laws asChapter 93Aof the General Laws. 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. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. hb```fcf`ah` )R`P 2@-%9fe`]*-(dv#Ns0i)=Uqnt!M5hHn%g8f There is again a material difference, however. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 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. 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. on Ethics & Prof'l Responsibility, Formal Op. 2991 0 obj <>stream The Texas Disciplinary Rules of . This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. They are imperatives, cast in the terms "shall" or "shall not." The Comments are cast often . 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. Subparagraph (b) prohibits a lawyer from contacting a person . 92-362 (1992). See Rule 1.0(f). 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. (Communication With a Represented Party) in accordance with the Commission Charter. 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[3]The Rule applies even though the represented person initiates or consents to the communication. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. There are a number of express statutory schemes which authorize communications between a member and person who would otherwise be subject to this rule. [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. 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. Oh, I fired my lawyer and other lies frustrated laymen tell. 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. Significant in all analyses of Rules 4.02 and 4.03 are the limitations that the lawyer knows the other party to be represented in the subject of the representation, i.e., the matter. %%EOF A .mass.gov website belongs to an official government organization in Massachusetts. Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. . 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. They are imperatives, cast in the terms "shall" or . In addition, the Commission considered the national standard of Texas Rules of Disciplinary Procedure. 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. The meeting was held. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. nkg;5>q;a$oM:Ht`dT+i{,L)+hfTj0!E8GbJqZO38,|fsl@4$3`xn|U HcN%4# )=e`0 [p If the other person appears to misunderstand the lawyers role, the lawyer shall try to correct the misunderstanding. Maintaining the Integrity of the Profession, Compendium on Professional Responsibility Index, MCLE Requirements for Certified Specialists, Instructions for Essay Questions and Performance Test, Multistate Professional Responsibility Examination, Further Investigation and Informal Conferences, Multijurisdictional Practice (MJP) Program, Out-of-State Attorney Arbitration Counsel (OSAAC), Volunteer Opportunities to Assist Veterans and Service Members. 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. Back to Rule | Table of Contents | Next Comment, American Bar Association 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. If you would like to continue helping us improve Mass.gov, join our user panel to test new features for the site. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. Compare Rule 3.4(f). Back to Texas Disciplinary Rules of Professional Conduct (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 1998). [8] This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. Model Rule 4.3 expressly prohibits the lawyer from giving legal advice to an unrepresented person (other than the advice to get a lawyer). Model Rules of Prof'l Conduct r. 4.2 cmt. We will use this information to improve the site. Communication with One Represented by Counsel 80 Rule 4.03. A member contacted by such a party continues to be bound by other Rules of Professional Conduct. Protecting the public & enhancing the administration of justice. . . Since A is employed by the opposition, the member cannot give independent advice. (3) Communications otherwise authorized by law. When dealing with a represented party, care should be taken to respect a partys relationship with its attorney. See Rule 4.4. (B) For purposes of this rule, a "party" includes: (1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or. 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. 4.02 Communication with One Represented by Counsel 74 4.03 Dealing With Unrepresented Person 76 4.04 Respect for Rights of Third Persons 76 . The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline. 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. Moreover, the rule does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. The Texas Disciplinary Rules of Professional Conduct (Rules) differ from the ABA Model Rules (Model Rules) in material ways in this area. 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. Without more, this conduct does not violate Rule 4.02 because you do not know the company is represented in this matter. These include ethics rules regarding contact with unrepresented per-sons and not violating the rights of third parties. The ability to make the client vicariously liable was crucial to Texas State Bar Ethics Committee Opinion 492 (June 1992). (See Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131 [261 Cal.Rptr. Viewed after the fact, however, inferences tend to be in favor the layman. A lawyer must immediately terminate communication with a person if the lawyer learns that the person is one with whom communication is not permitted by this Rule. SeeRule 1.0(h). 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. Rules of Professional Conduct Rule 2-100 Communication With a Represented Party (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. There, a labor organization employed an attorney to negotiate and resolve workplace issues. Knows is defined in Texas Rules as denot[ing] actual knowledge of the fact in question. [8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has knowledge of the fact of the representation; but such knowledge may be inferred from the circumstances. 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). Rules of Court, Rules 3.35 3.37; 5.425 - (Limited Scope Representation).) [8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. Ct. App. [1] 162 S.W.3d 825, 833 (Tex. The ABAs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. . The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. [2] 974 S.W.2d 97, 104 (Tex. . Share sensitive information only on official, secure websites. > Rules of Professional Conduct > Rule 4.2 Communication with Person Represented by Counsel. 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. . where ethics rules permit ex parte contact with an organiza-tion's current or former employees, however, there are other ethical considerations that may restrict that contact. (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.). (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. 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. These statutes protect a variety of other rights such as the right of employees to organize and to engage in collective bargaining, employee health and safety, or equal employment opportunity. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. The claimant considered the offer too low, and the claimants lawyer directly contacted a council member to try to get a better deal. Transactions with Persons Other than Clients, Chapter 7. 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