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. . Attorneys can also directly communicate with each other on behalf of their clients. Rule 4.2 Communication With Person Represented By Counsel - Comment [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. As noted earlier, New York has adopted a particularly narrow version of the common interest privilege by including the requirement of anticipated litigation, and other jurisdictions disagree about the meaning of common, among other issues. These courts reason, with some persuasive force, that the companies are engaged in a zero-sum game in obtaining the best deal for themselves at the others expense, and therefore cannot share a common interest.16 But other courts have found that premerger negotiations between separate entities can be protected as privileged.17 A seminal opinion in this line of cases reasoned that shielding communications between prospective buyers and sellers from discovery encourages frank communications, thereby reducing unwelcome surprises after acquisition and ultimately diminishing the risk of subsequent litigation.18. How a Lawyer Deals With an Unrepresented Party There are some nuances, however, which Rule 4.2 and/or the ABA opinion point to. 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. Back to Rule | Table of Contents | Next Comment, American Bar Association ABA opinion gives guidelines for communicating with people receiving United States v. Schwimmer, 892 F.2d 237 (2d Cir. Compare Rule 3.4(f). hbbd```b``"IO L;"'$3\& `5@`vddbHc$?f`{ $:$j6Jqh8Pq $4 This policy lubricates business deals and encourages more openness in transactions of this nature.). Georgia Rules of Professional Conduct - State Bar of Georgia 1995) (reservation of rights creates a conflict of interest). Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation such that the insurer is entitled to the defense counsels materials. Communications often are not either purely legal or purely not legal in nature. 24. 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. Coming to Terms When Negotiating with a Non-lawyer (United States) 308, 311 (N.D. Cal. For example, in the Visual Scene case from Florida,19 a plaintiff distributor of glass sued three defendants because the glass was allegedly defective. Can we talk? In-house counsel and opponent's lawyer can communicate To be sure, communications between the plaintiff and the defendant processor on many other issues were probably not privileged because those two parties were actively litigating against each other regarding the defendant processors alleged liability. #{}}jc1X6fm;'_9 r:8q:O:8uJqnv=MmR 4 In-house counsel and opponents lawyer can communicate, says Va. opinion, Op. 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. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.); Swidler & Berlin v. United States, 524 U.S. 399, 40611 (1998) (holding that the attorney-client privilege survives even death and noting that the U.S. Supreme Court rejects using a balancing test in defining the contours of the privilege); Kenneth S. Broun et al., McCormick on Evidence 87, at 12122 (John W. Strong ed., 4th ed. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). 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. of Cal., 101 F.3d 1386, 1391 (Fed. 331 (D. C. Bar AssnOct. 2005)(generally, no prior consentneeded from companys outside counsel in order fora lawyer tocommunicate with in-house counsel on thesubject of the representation);In re Grievance Proceeding, 2002 U.S. Dist. 4.3 Dealing with Unrepresented Person. Coming to Terms When Negotiating with a Non-lawyer (United States) PDF 2019. Published in The Judges' Journal, Vol. 58, No. 2, Spring 2019 Police, 253 F.R.D. More importantly for purposes of this article, courts have also recognized the co-client or joint client privilege, which extends the attorney-client privilege to include additional parties without the risk of waiver.6 Where multiple clients retain the same attorney(s) to represent them, communications among the multiple clients and the shared attorney(s) remain insulated from discovery. Two of the defendants were involved with manufacturing the glass, while the third defendant processed the glass. ISBA Ethics Opinions on Communication with Represented Person Opinion 956 (1/14/13) Topic : Communication with unrepresented party; taking deposition of unrepresented party; deceptive/and/or fraudulent conduct at client's request. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. The more imminent that litigation appears, the more likely it might be that the attorneys advice is predominately legal in nature. Party affiliation: I am cross-filed and will appear on the Republican and Democratic ballots. 07-CV-10945, 2008 WL 2217682, at *3 (E.D. or will be emailed to unrepresented parties following the hearing. and transmitted in writing. Whenever a lawyer communicates with a non-lawyer, there is the potential for misunderstanding and overreaching. In Part I of this article, "When You Can Contact Others Who Are or Were Represented by Counsel" (NYLER April 2015), we explained the basic guidelines as to when a lawyer is allowed to directly contact another party who is represented by counsel under Rule 4.2 of the New York Rules of Professional Conduct (NYRPC)the No-Contact Rule. Legal doctrine that impedes frank communication between buyers and sellers also sets the stage for more lawsuits, as buyers are more likely to be unpleasantly surprised by what they receive. [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. 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. Mich. May 27, 2008) (discussing potential intellectual property issues, but not necessarily litigation). Ethics Spotlight: Dealing With Self-Represented Litigants 76 cmt. {{currentYear}} American Bar Association, all rights reserved. A persons knowledge may be inferred from circumstances. [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. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 "generally does not prohibit" outside counsel from communicating ex parte with an opposing party's inside counsel about the subject of the representation. 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. . 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. When encountering different courts discussions of the co-client, joint defense/plaintiff, and common interest privileges, attorneys might find that the nomenclature varies from one jurisdiction to another. See Rule 8.4 (a). you meet with the pro se party. 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 such, a quick refresher is in order. 2005) ([B]y virtue of assuming the functions and duties of [a] full-time employee, the contractor is a de facto employee of the company.); In re Flonase Antitrust Litig., 879 F. Supp. [1] 162 S.W.3d 825, 833 (Tex. See Discovery Order No. of Ophthalmology, Inc., 106 F.R.D. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. PDF Guidelines for solicitors dealing with self-represented parties 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. Va. 2008). Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. See Rule 2-100 (B) (1)- (2). It's time to renew your membership and keep access to free CLE, valuable publications and more. PDF Formal Ethics Opinion KENTUCKY BAR ASSOCIATION 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. i couldnt recommend him more. 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. . DC Bar - Rules of Professional Conduct . Ethics, Professional Responsibility and More. Comment [1-2]ABA Model Rule Comments not adopted. To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim. 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. 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. The lawyer may still communicate with the party about subject matter B. Kenneth S. Broun et al., McCormick on Evidence. South Dakota Codified Laws 16-18-A (2022) - SOUTH DAKOTA RULES OF 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. Cal. draconian supervision of sole and small firm practitioners, and in where . [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. 10. 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. The meeting was held. Karen is a member of Thompson Hines business litigation group. Even parties that are otherwise adversariessuch as a plaintiff and a defendantmight share a common interest privilege as to discrete issues of mutual importance. PDF Can We Talk: Communicating with Unrepresented Persons - Microsoft 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. 18. 1974) (identical, not similar interests required in patent litigation); La. 308, 310 (N.D. Cal. 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. Per Official Comment 2 to Texas Rule 4.02, consent to direct contact may be implied from the circumstances. In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. . 163, 171 (S.D.N.Y. 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. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. 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. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. 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. 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. In answering this question, it is important to distinguish between the common interest privilege, which is the subject of this article, and the common interest doctrine, which often arises in coverage disputes. (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.). (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. 1783, 2007 WL 2363311, at *4 (N.D. Ill. Aug. 13, 2007) (finding that companies seeking to merge didnt have identical interests; therefore, premerger discussions were not privileged); Union Carbide Corp. v. Dow Chem. "Party" can include organizations and their officers, directors and managing . 12. 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. 19. Attend mediations or arbitrations where required. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. The common interest doctrine is distinct from the common interest privilege because in the former scenario there are not necessarily two separate groups of clients and their respective counsel working toward a common goal in the underlying case. e (Am. See, e.g., Exp.-Imp. 29. United States v. Okun, 281 F. Appx 228, 23132 (4th Cir. Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). . 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. 17. 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.

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