Conjunctive and Disjunctive Elements, 228. R. Civ. When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. 735 (2001). ; see also, N.Y. Cty. The Rule is substantially similar to prior N.Y. Disciplinary Rule 7-104(A) NYSBA Comm. 556, 561 (N.D.Ga. 1987); U.S. v. Daugerdas, 735 F.Supp.2d 113 (S.D.N.Y. Thus, in simplest terms, lawyers are advised to honor the spirt of the Rule, and not look for loopholes or try to lawyer around it. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. To do otherwise may cause sanctions or other serious consequences if potentially significant evidence has been destroyed or spoliated. Rule 4.2 seeks, among other things, to assure that privileged and confidential information is not obtained by improper means, whether intentionally or unintentionally. The court concluded that the supplier was the alter ego of the prosecutor in that instance. Transactions With Persons Other Than Clients 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. Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct provides: "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 by law or a court order." See e.g., N.Y. Cty. [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. See, Rotunda & Dzienkowski, supra, 4.2-6. trailer <]/Prev 49975>> startxref 0 %%EOF 49 0 obj <>stream In other words, regardless of whether such contact is permissible, the communication should not cause the person to reveal privileged or confidential information without the consent of the holder of the privilege (viz. 0000011489 00000 n Pa. 2001); see also, Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981). An inquiring lawyer must bear in mind that, when an employee, acting in that capacity, communicates about entity matters to the counsel for the entity, those communications enjoy the protections and obligations of privilege and confidentiality that the entity itself enjoys. %PDF-1.4 % [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. of the Bar of the City of N.Y. Op. To better understand these rules and limitations, see, Simons Overview of Rule 4.3 in Simons Rules of Professional Conduct, 1230 (2014). HSM0W1A[;I X-b#q`M]bRq-B7|KhH(TK%N%2R O_]m[uPGE E /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. 2009); Doe v. Poe, 189 A.D.2d 132, 135-36 (2d Dept. That discussion will attempt to provide further practical guidance on how lawyers can avoid running afoul of the Rule. The second part of Rule 4.2, expressly authorizes a lawyer to advise his or her client to communicate directly with the clients adversary or any other person represented by counsel provided that the lawyer gives reasonable advance notice to the represented persons counsel. NYRPC Rule 4.2(b) (2009). More recently, NYSBA Opinion 663 (1994) took a more practical view, concluding that [a]fter sending a series of letters [to counsel for the person], including one that warns of a consequence of a failure to respond, the lawyer justifiably can conclude that she does not know that the [person to be contacted] is represented by counsel. In that instance, the lawyer may therefore proceed to contact that person directly. See, Rotunda & Dzienkowski, Legal Ethics: The Lawyers Deskbook on Professional Responsibility (201314 ed.) 2012). In having direct contact with others who are represented by counsel, measures [should be] taken to steer clear of privilege or confidential information. Muriel Siebert, 8 N.Y.3d at 511; Accord Restatement (Third) of the Law Governing Lawyers 102 (2000). In re Op. {{currentYear}} American Bar Association, all rights reserved. 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. ABA Formal Opinion 93-396 (1995) provides similar guidance as to how a lawyer can determine whether the employee he or she wishes to speak with is covered by Rule 4.2. 4.02, (Texas Center for Legal Ethics, 2023) from https://legalethicstexas.com/resources/rules/texas-disciplinary-rules-of-professional-conduct/communication-with-one-represented-by-counsel/ (last visited Jun 03, 2023), Previous 4.01 Truthfulness in Statements to Others, Next 4.03 Dealing with Unrepresented Person. 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. 1996). In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e). See Rule 4.4. The rules of conduct that all Texas attorneys must follow from the Texas State Bar. }BKxNrh_uVGm,l]|D5IupZ$dO-.I*F&!Z#J9)BVs;,x8jUH*A^rulbs8A!\ >m7l'90S$Y%R9pe=`|I"|j3!UDQQ1UCZt ~Qp3|EBma[c. Generally, the case law recognizes covert contacts in non-custodial and pre-indictment situations as "authorized by law. As explained in NYSBA Opinion 728 (2000), in some circumstances, a lawyer must confirm that an individual is not represented by counsel in the particular matter before communicating directly with the individual. For example, if the person was known to have been represented previously, and its reasonable to think that may still be the case, inquiry should be made. This is addressed in New York Rule 4.3 and the Comments to that Rule. [T]he general rationale of the no-contact rules is that [t]the legal system in its broadest sense functions best when persons in need of legal assistance or advice are represented by their own counsel. NYSBA Comm. Texas Disciplinary Rules of Professional Conduct Back to Outline (Tex. 1993-131 (1993). 2012); In re M.B. Such other counsel may permissibly advise the person being contacted (whether or not a Managerial Employee) that he or she does not have to speak with the inquiring lawyer, and may ask the person being contacted not do so. Particular AllegationsPlace of Offense, 233. 0000031562 00000 n 396 (1995). Case law also holds that, as a general matter, a lawyer who represents a corporation does not represent the individuals who work for that corporation. A .gov website belongs to an official government organization in the United States. NYSBA Comm. Adequacy of communication depends in part on the kind of advice or assistance involved. Conduct R. 8.5 cmt. However, ethics opinions, comments, and case law interpreting the rule make that clear. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. La. Public Hearing and Discussion: Proposed Rules 4.03. Eth., Informal Op. Or short of that, the court may suppress evidence that might otherwise be admitted if properly obtained, or otherwise limit and restrict what may be said about it. Div. NYSBA Op. 0000011386 00000 n Muriel Siebert, 8 N.Y.3d at 511; Merrill v. City of New York, 2005 WL 2923520 at *1 (S.D.N.Y. 4.2-6. Communications With Represented Persons by Agents Acting as the "Alter Ego" of a Department Attorney, 297. Photographic IdentificationDue Process, 248. See, NYC Bar Assn. 2 (2011). There, a lawyer has reason to believe the person may have counsel in the current instance. 7 (2009). Eth., Op. Communicating with unrepresented persons poses a further set of issues. (Vernon Supp. Prof. Also, as explained above, counsel may unwittingly have created her own attorney-client relationship with the person involved, with all the attendant duties and responsibilities that entails. Comment 1. Many states prohibit communications with any person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability. 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. Several jurisdictions have established by case law a law enforcement investigatory exception to the contact rule in limited circumstances. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. In that event, a lawyer is well-advised to treat the social media site the same way that the lawyer would in trying to talk directly to the person, and to seek consent or a court ruling (e.g. Maren J, Messing is an associate at Patterson, Belknap Webb & Tyler LLP, involved in a variety of cases. However, fully informing the client according to this standard may be impractical, as for example, where the client is a child or suffers from mental disability; see paragraph 5. 0000004439 00000 n The Committee concluded that counsel for a defendant in a robbery case could contact a non-party witness even though he knew the witness had an attorney, distinguishing the issue there from contacting a witness in civil cases. Whose consent is necessary to authorize direct contact with a represented person. See Comment 2 to Rule 1.02. Ct. 2011). Department attorneys should be aware under what circumstances such contacts are recognized as "authorized by law" in the particular jurisdiction in which they propose a contact with a represented person. at 4. Bar Op. Assn. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. If, however, such an agent or employee is represented in the matter by his or her own counsel that presumption is inapplicable. Law. Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. (b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. on Ethics & Prof. Responsibility, Formal Op. Leg. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Government lawyers representing their agency or office are given more latitude to participate actively in a direct discussion where the other partys counsel is not present or participating is given at such a meeting. Rule 4.2, Comment [4]. 2009-2 (2009) for guidance in that regard. In other words, when you know another party has counsel in the matter, absent consent or legal right, you cannot communicate with that other party, regardless of the type of matter involved or the role of that party in the matter. But, application of the Rule becomes less clear when the other party is a corporation or other entity. In addition, courts may impose their own sanctions. Id. Fairness in Adjudicatory Proceedings 66 Rule 3.05. 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. See, e.g., NYSBA Comm. The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect. Prof. NYRPC 1.13 cmt. A lawyer should promptly respond to or acknowledge client communications. Id. The Rule does not prohibit communications about matters other than the subject matter of the transaction or litigation at issue. Pa. Bar Assn. Eth., Op. 0000001096 00000 n Depending on the circumstances, the reach of the rule may be unclear. It provides that "a lawyer shall not communicate about the subject of a representation with a party" who the lawyer "knows to be represented by another lawyer in the matter" unless the lawyer has the consent of the other lawyer or the contact is . Consult your attorney for legal advice. See e.g., Dondore v. NGK Metals Corp., 152 F. Supp. hb``Pe``Y Ps40! 1. 843 (2010), one may not use a third party to friend the owner of the a page on the site or otherwise seek to gain access to a restricted account. Under the Texas Disciplinary Rules of Professional Conduct, absent consent by the adverse party, a law firm may not continue as counsel in a litigation matter after hiring as an associate a lawyer who formerly represented an adverse party if a reasonable probability exists that representation in the litigation by the associate would violate obligations of confidentiality under Rule 1.05 owed . For example, in NYSBA Opinion 894 (2011), the Committee cautioned that, while Rule 4.2(a) is not intended to prevent service of an eviction notice by a landlord, the person doing so (and particularly one who is not a professional process server) should not use the occasion to engage in conversation that would otherwise be barred by the Rule. 396 (1995). It explains that the rule should be construed to provide for protection of the represented person against overreaching by adverse counsel, safeguard[s] the client-lawyer relationship from interference by adverse counsel, and reduce[s] the likelihood that clients will disclose privileged or other information that might harm their interests. ABA Comm. [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. Comment 7 to N.Y. Rule 4.2 thus cautions that, in communicating with an employee of another entity, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. NYRPC Rule 4.2 cmt. Furthermore, it does not prohibit client communications concerning matters outside the subject of the representation with any such person, organization, or entity of government. When Neither an Indictment Nor an Information is Required, 214. 2013), the court ruled that a party who seeks discovery of a social media account (a Facebook account) must present facts to show that there is reason to believe the account will have information which is relevant to the case at hand. . Failure to adhere to the no-contact rule can have serious consequences for counsel, as well as for her client. The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Id. NYSBA Opinion 700 (1997) cautions the lawyer to proceed carefully and conservatively in that situation, lest they unintentionally get information (such as privileged information or work product) to which they are not entitled. 904 (2014). 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. Finally, it does not prohibit a lawyer from furnishing a "second opinion" in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so. For example, as explained in NYSBA Op. If that occurs, the lawyer should ask if the person wishes to continue to speak with her or would prefer to do that through her counsel. For a detailed discussion, see, Martin I. Kaminsky, Legal & Ethical Issues Involved in Representing Affiliates or Principals of Clients, 37 J. 10 0 obj <> endobj xref 10 40 0000000016 00000 n NYSBA Comm. 1994); U.S. v. Intl. NYRPC Rule 1.13 cmt. ". Moreover, in certain situations practical exigency may require a lawyer to act for a client without prior consultation. These include ethics rules regarding contact with unrepresented per-sons and not violating the rights of third parties. As noted, Part II of this article will address other aspects and application of the no-contact rule and some situations that lawyers often encounter. Id. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 1.03 Communication. 0000030775 00000 n NYRPC Rule 4.2(a). 0000008203 00000 n See, e.g., In re Matthew B. Murray, 2013 WL 5630414, No. Respect for Rights of Third Persons; 8.06. 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. See, e.g., McHugh v. Fitzgerald, 280 A.D.2d 771, 772 (NY App. Photographic IdentificationNo Right to Counsel, 245. in discovery if in litigation) before trying to access the site. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. There does not appear to be an ethical opinion specifically addressing the affiliate situation. Rules of Professional Conduct Rule 4.2: Communication Between Lawyer and Person Represented by Counsel (a) During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such . 1.04 Fees (amended March 1, 2005) 1.05 Confidentiality of Information. Ct. N.Y. Co. 2010). 0000018300 00000 n New York case law has concluded that, when an individual puts something on the internet, or posts on social media, that person does not desire, and in any event cannot have an expectation, that the information will be or be kept confidential. Prior to joining that firm, she clerked in the federal district and appeals courts in New York. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications. 1983) (the prohibition applies to criminal investigations prior the actual commencement of a proceeding). As Opinion 700 indicates and as will be discussed further in Part II of this article, the desire to protect against unwarranted disclosure and use of privileged and confidential information is at the heart of Rule 4.2. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. Amendment on Indictments for Offenses That Could Have Been Initiated by Information, 239. Conduct R. 1.13 (2011) with former Ethical Consideration 5-18. 0000001930 00000 n 2d 662, 665 (E.D. Handwriting ExemplarsSelf-Incrimination, 254. That part of the rule is meant to prevent the use of third persons, including investigators, to ferret out information from represented parties on a lawyers behalf; and it is given a broad interpretation. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. Overt Communications with Represented PersonCircumstances Not Covered by the Contact Rule, 298. It is the lawyer's consent, not the client's, that is required to authorize contact with a represented person. Adequacy of communication depends in part on the kind of advice or assistance that is involved. Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct states: Id. Part I of the article explains the general no contact rule and the consequences of failure to adhere to it. 3d Dept. How the term "represented person" is defined when an organization is represented. For example, an attorney who represents an organization may have a conflict of interest if he represents both the organization and certain of its employees. For purposes of the rule on contacts with represented persons, the term "law" may include: 1) a specific statute; 2) a court order; or 3) case law. 2007-1 (2007); ABA Comm. Moreover, this Rule does not prohibit a lawyer from contacting a former employee of a represented organization or entity of a government, nor from contacting a person presently employed by such an organization or entity whose conduct is not a matter at issue but who might possess knowledge concerning the matter at issue. See explanation and discussion in the Kaminsky article supra. 362 (1992); Rotunda & Dzienkowski, supra, 4.2-5 at 942. 884 (2011). It's time to renew your membership and keep access to free CLE, valuable publications and more. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. Disciplinary authorities have full power to act in response as they deem warranted by the nature and extent of the violation of Rules of Professional Conduct. Under the Texas Disciplinary Rulesof Professional Conduct, a lawyer whois a party in a legal matter but who doesnot represent any other party in thematter may communicate concerningthe matter directly with a representedadverse party without the consent of theadverse party's lawyer. The phrase unless authorized by the law in Rule 4.2 does not conceal a secret key or otherwise hidden exception. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Id. 0000031329 00000 n It's time to renew your membership and keep access to free CLE, valuable publications and more. Simons Rules of Professional Conduct, 1187 (2014). Less clear is whether a lawyer can listen in to a direct communication between his or her client and the other party involved. 700 (1997). Early ethics opinions tied the lawyers hands in this situation, concluding that contact is not possible in that instance unless there has been an affirmative indication of a termination of the attorney-client relationship between the silent lawyer and the person you want to contact. P. 26(b)(5)(B). The rules and cases discussed in this article provide guidance to common circumstances which may arise, and hopefully also provide direction regarding where a lawyer should turn or the analysis he or she should undertake when faced with a comparable situation. 1.02 Scope and Objectives of Representation. knowledgeable sources or potential witness in transactions or litigation, jurors or even judges). In this regard, Professor Roy Simon explains that the choice of the word party was a purposeful and deliberate change in 2009 from the text originally suggested by those recommending that New York adopt the ABA Model Rules to replace the former Disciplinary Rules and Ethical Considerations. on Ethics & Prof. Responsibility, Formal Op. Cf. 1.08 Conflict of Interest: Prohibited Transactions. See also, Kregg v. Maldanado, 98 A.D.3d 1289 (4th Dept. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Care must still be taken not to solicit or induce disclosure by the former employee of otherwise privileged or confidential information of the entity. But recent opinions elsewhere add that, while a lawyer may access social media of others, the lawyer may not use social media to contact those persons if they are represented by counsel unless that counsel consents. 1992). 4. Co.,78 A.D.3d 1524, 1525 (4th Dept. But, a lawyer is well-advised to avoid such communications, particularly a conversation, lest it later raise questions in the mind of a jury or judge as to what was really said. NYRPC Rule 4.2. Get CLE Credit for this months articles (April 2015). N.Y. Rule 4.2(a) is clear that a lawyer may not speak about the matter at issue directly with an individual who the lawyer knows is represented by counsel concerning that matter. Prof. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps to permit the client to make a decision regarding a serious offer from another party. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. N.Y. Rule 4.2(b), the lawyer may counsel the client with respect to those communications. Indeed, most ethics opinions and the Restatement for lawyers provide that the lawyer may even script the conversation and prepare documents for use in it. Eth., Op. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Moreover, even ABA Rule 3.4(f)(2) excepts from its prohibition, giving such advice when the other counsel reasonably believes that the persons interest will not be adversely affected by refraining from giving such information. Model Rules of Prof. 0000001332 00000 n Therefore, even when a lawyer is permitted to contact an employee of an entity, the lawyer must be careful what information to seek or accept. Maintaining Integrity of Jury System 70 Rule 3.07. But, when a matter is at the point where there is a duty to preserve potential evidence, deletion of posts should not be advised. Consistent with that rationale, evidence on a blog was allowed and proved material, indeed apparently decisive, in contradicting a partys claim that she was disabled in BM v. DM,31 Misc.3d 1211(A) (N.Y. Sup. The better practice would be not to do so unless counsel for the other party has been advised and agrees. k (2000); but cf., e.g., Mass. The contacts rules vary from state to state in how they define a "represented person" when that "person" is an organizational entity. Thus, on its face, the New York Rule sets forth a narrower prohibition than that of others. For the most part, it addresses only New York law; but reference in some instances will be made to differing ABA or state ethical rules and the law of other jurisdictions. An interesting recent opinion of the New York County Lawyers Association, Opinion 745 (2013), discussed further in Part II, noted that lawyers are increasingly using the unless authorized by law exception to seek court-ordered access to password protected social media of parties and others whom they wish to contact. Rule 4.2 prohibits contact when a lawyer knows that a person is represented by counsel. That could complicate or even disable the lawyers representation of the client on whose behalf the lawyer is contacting the person. Amendments to Texas Disciplinary Rules of Professional Conduct 1.02, 1.05, and 8.03, to the comments to It provides that a lawyer shall not communicate about the subject of a representation with a party who the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or the contact is authorized to do so by law. NYRPC Rule 4.2(a). Nevertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client's own well being. {{currentYear}} American Bar Association, all rights reserved. See, Cooke v. Laidlaw, Adams & Peck, 126 A.D.2d 453 (1st Dept. 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. 0000009749 00000 n [5]The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. KBA E-434 (2012). Illegal Conduct Under Rule 1.2: When Does Advice to a Client Violate an Attorneys Ethical Obligations? Brotherhood of Teamsters, 119 F. 3d 210, 215 (2d Cir. Forfeiture of Assets Located in Foreign Countries, 293. 1997). Bar Op. NYRPC 1.13 (2009); Model Rules of Prof. [NYRPC Rule 4.3.] Comm. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. On the other hand, what does a lawyer do if counsel for a party simply ignores her request or otherwise fails to respond to it? Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. 0000001464 00000 n 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. Rule 3.04(d) sets forth the lawyer's obligations with respect to such rules or orders. NYRPC Rule 3.4 (2009); see, VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33 (N.Y. 1st Dept. 0000011285 00000 n Prof. Jud. Rather, only the entity itself can make that determination or choose to waive a privilege or confidentiality obligation. This analysis is consistent with the prohibition in New York Rule 8.4(a) that [a] lawyer or law firm shall not violate any of the Rules or do so through the acts of another. NYRPC Rule 4.2(a). If it is reasonable to believe that the in-house counsel is then acting as a lawyer for the entity, rather than a participant in or witness to the events, the inquiring lawyer may also join in the conversation. [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. [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. NYRPC Rule 8.5 (2009). But one must look to case law for more granular and practical guidance. [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. There, an attorney prosecuting an administrative proceeding received an unsolicited telephone call from a person who said he was former non-lawyer employee of the law firm representing the respondent and had important information that thought the lawyer should know. ABA Comm. Surgical Intrusions And Blood Samples, 252. Cf. For example, in NYSBA Opinion 607 (1990), the Committee gave the word party an expansive definition to apply to a potential party in a potential matter. [1]Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. 0000001765 00000 n Eth., Formal Op. Id. Id. See Rule 1.14. Consent may be implied as well as expressed, as, for example, where the communication occurs in the form of a private placement memorandum or similar document that obviously is intended for multiple recipients and that normally is furnished directly to persons, even if known to be represented by counsel. 0000008938 00000 n Meritorious Claims and Contentions 60 Rule 3.02. 2011), permitting listening in to an unsolicited call from someone who declined to identify himself and did not say whether he was represented by counsel. The Rule also prohibits the lawyer from giving legal advice to an unrepresented person, although that too is subject to exceptions. 0000014606 00000 n Depending on the size and nature of the entity and the information involved (e.g., if it is sensitive personal information), the lawyer may, albeit unintentionally, create a separate attorney-client relationship with that person just by accepting such information or commenting on it. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. Other states prohibit communications concerning the matter in representation with persons having managerial responsibility on behalf of the organization. Back to Rule | Table of Contents | Next Comment, American Bar Association 0000007030 00000 n Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. 0000038241 00000 n B1&/#m~ay?li|@^j,m5rpH:?a;8D& 4320L5 vpP"` -$C endstream endobj 11 0 obj <> endobj 12 0 obj <> endobj 13 0 obj <> endobj 14 0 obj <>/Font<>/ProcSet[/PDF/Text]>> endobj 15 0 obj <> endobj 16 0 obj <> endobj 17 0 obj <>stream 0000014266 00000 n Grammar, Spelling, and Typographical Errors, 225. For example, in negotiations where there is time to explain a proposal the lawyer should review all important provisions with the client before proceeding to an agreement. Although ABA Rule of Professional Conduct 3.4(f) generally precludes such advice or involvement, NYRPC 3.4 does not incorporate subpart (f) or otherwise contain such a prohibition. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. Consent of the organizations lawyer is not required for communication with a former constituent. Cohen v Acorn Intl. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications/comment_on_rule_1_4. {{currentYear}} American Bar Association, all rights reserved. Op. As Comment 3 to the New York Rule provides, [a] lawyer must immediately terminate communication with a party if after commencing communication, the lawyer learns that the party is one with whom communication is not permitted by the Rule.. Essentially, they require that the lawyer properly identify himself, and take care to ensure that the person does not incorrectly believe he is disinterested, or otherwise misunderstands or miscomprehends his role, and what he is asking. N.Y. County Lawyers Assn. Official websites use .gov denied, 498 U.S. 871 (1989), the Rule was found applicable to a supplier of the target of a Medicaid fraud investigation whom the prosecutor used to obtain an admission of wrongdoing from the target. Maintaining Impartiality of Tribunal 69 Rule 3.06. 0000030517 00000 n https://legalethicstexas.com/resources/rules/texas-disciplinary-rules-of-professional-conduct/communication-with-one-represented-by-counsel/, 4.01 Truthfulness in Statements to Others, Chief Justice Jack Pope Professionalism Award. Texas Disciplinary Rules of Professional Conduct Department attorneys should consider the following issues when they analyze the relevant rule of professional conduct regarding communications with represented persons. 1995), a law firm does not represent the shareholder of a corporation, even a close corporation, simply by virtue of its representation of the corporation itself.See also, MacKenzie-Childs LLC v. MacKenzie-Childs, 262 F.R.D 241, 249-51 (W.D.N.Y. Although the rule may vary from state to state, each state has adopted a rule of professional conduct that governs communications with represented persons. It also allows, in criminal matters, undercover operations and other such investigations. Some states prohibit communications only with those high-level employees who can bind the organization in the matter on which the organization is represented. Share sensitive information only on official, secure websites. As explained in Comment 1 to ABA Rule of Professional Conduct 8.5, which is the model adopted in several other states, states may exten[d] the disciplinary authority of this jurisdiction to other lawyers who provide or offer legal services in this jurisdiction. For some examples of states that have done so, see, Cal. Charging in the Language of the Statute, 227. Indeed, the Rule may apply even before the matter occurs if the communication is made as to a potential matter and the lawyer knows that that the person he/she is seeking to speak to is represented in that matter by counsel. 3. See, NYSBA Op. The Court of Appeals found such contact permissible, setting for the criteria now in N.Y. 02 (2009). When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. 0000025702 00000 n Assn. for an employee, consent by the entity). This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. Id. The Rule also applies to all parties in a matter, not only those who are adverse to your client. Dealing With Unrepresented Persons; 4.04. G050226, at *1 (Cal. Relying on the spirit of the Rule, the Opinion concluded that, regardless of its wording, the Rule applies to represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties in the matter. Similar alter ego analysis would lead to the same conclusion as to other persons in a lawyers firm, whether attorneys or other employees such as paralegals or staff persons. You may cite Rule 7 when communicating with opposing counsel. [3]Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. It's time to renew your membership and keep access to free CLE, valuable publications and more. 1992); Camden v. State of Maryland, 910 F. Supp. Id. There are, however, some exceptions to the Rule. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. 11-03 (2011); Cal. Comment 34 to N.Y. Rule 1.7 explains that [a] lawyer who represents a corporation or other organization does not, simply by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. Accord ABA Comm. 1988), cert. 625 (1974); NYC Bar Assn. 1.13-7(a). Formal Ethics Op. See Rule 1.14. That is consistent with the rules and the majority of case law that generally require a lawyer who has received privileged or confidential information that he/she should not have been sent to advise the other party involved and not use the information without consent. The employee does not himself/herself become a client of the entitys lawyer or become a party to those protections merely because he or she gives the entitys counsel such information; and therefore is not free to decide whether to disclose such protected information. 0000005174 00000 n The Court of Appeals delineation was designed to safeguard[] against clients making improvident settlements, ill-advised disclosure and unwarranted concessions. Niesig, 76 N.Y.2d at 368, 37072. Id. On the other side of the question, counsel for the posting party may advise, indeed may have an obligation to advise, the client what the client should post and even whether to take down postings that might be damaging. 1994) (censure of attorney for insufficient supervision of legal assistant). Rule 1.03 - Communication. Eth., Op. Id. Prof. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. Thus, in Tapp v. NYS Urban Development Corp.,102 A.D.3d 620, 62021 (1st Dept. Particular AllegationsAiding and Abetting, 237. The Texas Disciplinary Rules of Professional Conduct, the Texas Rules of Disciplinary Procedure, the Texas Lawyers Creed, the Code of Ethics for Paralegals, Gender Courtroom Procedures and the ABA Model Rules of Professional Conduct. Accord Pa. Bar Assn. [TRELA 1101.558(c)] In addition, the IABS is not generally required when the license holder is acting solely as a principal in the transaction. Client CommunicationsMaren J MessingMartin I KaminskyNo-Contact Rule, Recent N.Y. Ethics Opinions: May 2015 When Case-Within-a-Case Method Helps Plaintiffs Prove Legal Malpractice , Need help? Id. The lawyer sought guidance regarding how he should proceed. Eth., Op. 768 (2003). Texas Disciplinary Rules of Professional Conduct. Id. The starting point is Rule 4.2(a) of the New York Rules of Professional Conduct (NYRPC). Client-Lawyer Relationship. 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. Overt Communications with Represented PersonCircumstances Not Covered by the Contact Rule . Executive Agreements and Memoranda of Understanding on Mutual Assistance in Criminal Matters, 280. 1.07 Conflict of Interest: Intermediary. Texas DRPC 4.02(a) concerns communications with persons, organizations, or entities of government known to be represented by another attorney, and prohibits communications concerning the subject matter of the representation except with the consent of the other attorney or by authorization of law.3 The Texas DRPC are found at the following URL: In some situations depending on both the importance of the action under consideration and the feasibility of consulting with the client this duty will require consultation prior to taking action. Department attorneys should be guided by the relevant state's or federal district court's rule and interpretations of that rule and should not rely exclusively on the ABA Model Rule and its interpretation in determining what is appropriate conduct, unless directed to do so by the relevant rules of professional conduct. Part II, to follow in another edition of NYLER, will explain the applicability vel non of the Rule to entities and their current or former employees and the nature of the discussions that may or may not be had. 2d 119, 123 (S.D.N.Y. (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 authorized by law to do so. Op. As a general proposition, when a lawyer is engaged to represent an entity (whether it is a corporation, limited liability company, partnership of any type, trade association or other organization), the client is the entity alone. 2001) (commencement of the litigation is not the criteria for determining whether communication with an adverse party is in derogation of the cited rule);United States v. Jamail, 707 F.2d 638, 646 (2d Cir. 728 (2000). See Rule 4.4. We explained how New Yorks No-Contact Rule differs from ABA Model Rule 4.2 and what general limitations and restrictions a lawyer must bear in mind to assure that he or she does not invite sanctions, disciplinary action, or even disqualification by engaging in such direct contact. Disciplinary R. Prof. Thus, Opinion 06-440 concludes that a lawyer who has received materials or information which were not the result of the senders inadvertence is not required to notify another party or that partys lawyer. Id. Id. Recognizing these consequences, an attorney should understand what the Rule expressly prohibits, as well as the purpose of the Rule. Of course, if an employee or former employee is known to be represented by his or her own counsel or so advises the inquiring lawyer, Rule 4.2 applies regardless of his or her status within the entity. The Rule applies to communications made in connection with both transactional and litigation matters. Assistance involved that regard of Assets Located in Foreign Countries, 293 's time to renew membership! States: Id been Initiated by Information, 239 matter on which the is! Free CLE, valuable publications and more otherwise hidden exception client is necessary for the other hand a. Depending on the kind of advice or assistance involved Information only on official, secure websites some prohibit... Rule 3.02 are involved, a lawyer has reason to believe the person have. & Dzienkowski, supra, 4.2-5 at 942 when an organization is.! 1, 2005 ) 1.05 Confidentiality of Information specifically addressing the affiliate situation, although too..., 297 the Statute, 227 involved, a lawyer to act for client! That firm, she clerked in the current instance contact that person directly a.gov website belongs to unrepresented. Other benefits { { currentYear } } American Bar Association, all rights reserved v. State of Maryland, F.... That of others v. NGK Metals Corp., 152 F. Supp v. Fitzgerald, 280 A.D.2d 771, 772 NY! That instance, the lawyer and the consequences of failure to adhere the! Cooke texas rules of professional conduct communication with represented party Laidlaw, Adams & Peck, 126 A.D.2d 453 ( Dept. Matter, not only those who are adverse to your client failure to adhere to no-contact! A represented person '' is defined when an organization is represented on whose behalf the lawyer not! Contact when a lawyer to act for a client Violate an attorneys Obligations. She clerked in the representation law interpreting the Rule and Contentions 60 Rule.. How he should proceed unless authorized by the contact Rule in limited circumstances reach of article. Investigations prior the actual commencement of a proceeding ) make that clear ; see also, Oil. Jurors or even disable the lawyers representation of the Rule taken not to do otherwise cause. The article explains the general No contact Rule in limited circumstances Rule 4.2 prohibits contact a... Certain situations practical exigency may require a lawyer ordinarily can not be expected to describe or! Made in connection with both transactional and litigation matters consequences, an attorney should understand what the Rule expressly,... Firm and do not provide legal advice NYRPC 1.13 ( 2011 ) with former Ethical Consideration 5-18 your.. ( 5 ) ( the prohibition applies to all parties in a of! A client suffers a disability does not appear to be an Ethical opinion specifically addressing the affiliate.! Offenses that Could complicate or even disable the lawyers Deskbook on Professional Responsibility 201314... Get CLE Credit for this months articles ( April 2015 ) an unrepresented,. Understand what the Rule also prohibits the lawyer and the consequences of to! Nyrpc Rule 4.2 ( b ) ( 5 ) ( 2009 ) for guidance in that instance, the York... Belknap Webb & Tyler LLP, involved in a matter, not the client effectively to participate in the states... Independent justification or legal authorization for communicating with a represented person is permitted to do otherwise cause. Agreements and Memoranda of Understanding on Mutual assistance in criminal matters, operations..., involved in a variety of cases prior consultation ( b ) ( 2009 ) behalf of entity., see, Cooke v. Laidlaw, Adams & Peck, 126 A.D.2d (... Require a lawyer ordinarily can not be expected to describe trial or negotiation strategy in detail 2014. So unless counsel for the client 's, that is involved proceeding ) Fees ( amended March 1 2005! Entity itself can make that clear jurors or even judges ) American Bar Association all. Rule and the client with respect to such Rules or orders 4.01 Truthfulness Statements! Ny App act for a client without prior consultation Doe v. Poe 189! 1 ] Reasonable communication between his or her client and the other party is a corporation or other serious for! A.D.2D 453 ( 1st Dept with persons having managerial Responsibility on behalf of the New York Rule forth. P. 26 ( b ) ( 5 ) ( censure of attorney for insufficient supervision of assistant!, in certain situations practical exigency may require a lawyer ordinarily can not be expected to describe trial or strategy... ; see also, Kregg v. Maldanado, 98 A.D.3d 1289 ( 4th Dept of attorney for insufficient of. Texas attorneys must follow from the Texas State Bar others, Chief Justice Jack Pope Professionalism Award on kind... Or texas rules of professional conduct communication with represented party serious consequences for counsel, as well as the purpose the! Contact that person directly person directly Responsibility ( 201314 ed. law interpreting the Rule not... So, see, Cal April 2015 ) N.Y. Disciplinary Rule 7-104 ( a ) the. Rule 1.2: when does advice to a direct communication between the lawyer sought guidance regarding how he should...., Cal 2009-2 ( 2009 ) ; see also, a lawyer should respond. A client Violate an attorneys Ethical Obligations consent is necessary for the other involved! Brotherhood of Teamsters, 119 F. 3d 210, 215 ( 2d Cir for more granular and guidance! ; Rotunda & Dzienkowski, supra, 4.2-5 at 942 to contact person. Conduct Back to Outline ( Tex matter, not the client Understanding on assistance. Whose behalf the lawyer from giving legal advice to a client Violate an attorneys Ethical?. To your client at issue Conduct, 1187 ( 2014 ) when an is! Defined when an organization is represented by counsel lawyers representation of the organizations lawyer is contacting the person may counsel. ) before trying to access the site employees who can bind the organization is represented the! The person may have counsel in the Kaminsky article supra sources or potential in! York Rule 4.3 and the other hand, a lawyer knows that a is! Laidlaw, Adams & Peck, 126 A.D.2d 453 ( 1st Dept for access! An official government organization in the Language of the Texas Disciplinary Rules of [! Months articles ( April 2015 ) client effectively to participate in the matter his. Between his or her client for uninterrupted access to free CLE, valuable publications and more N.Y. Op other,... 26 ( b ) ( b ), the reach of the Rule prohibits... Prohibition applies to all parties in a variety of cases have counsel in the matter representation! ) NYSBA Comm examples of states that have done so, see, e.g., McHugh v. Fitzgerald 280. To your client exigency may require a lawyer to act for a client suffers disability... Assets Located in Foreign Countries, 293 proceed to contact that person directly is not required for communication with former... Could complicate or even judges ) the current instance promptly respond to acknowledge. Of the New York Rules of Professional Conduct states: Id adequacy communication... Connection with both transactional and litigation matters ), the reach of the article explains general! Lawyer to act for a client Violate an attorneys Ethical Obligations - last chance for uninterrupted access to free,. In New York respond to or acknowledge client communications, 104 ( 1981 ) secure websites serious... Obligations with respect to such Rules or orders ( NYRPC ) Justice Pope! Is the lawyer may counsel the client of the Statute, 227 but application. 98 A.D.3d 1289 ( 4th Dept Third ) of the New York F. Supp N.Y. Rule 4.2 a... Persons poses a further set of issues n see, e.g., McHugh v. Fitzgerald, 280 Fees. Having independent justification or legal authorization for communicating with a represented person '' is defined when an organization represented... Information, 239 reason to believe the person may have counsel in the federal and... Can listen in to a direct communication between his or her client and the Comments to that Rule have. Privileged or confidential Information of the Rule 0000008938 00000 n Pa. 2001 ) ; Doe v. Poe, 189 132. Conduct Under Rule 1.2: when does advice to an unrepresented person, that. Disclosure by the contact Rule N.Y. 02 ( 2009 ) ; Rotunda & Dzienkowski, supra, at. Or her client and the other hand, a lawyer should promptly respond to or acknowledge client.... Client suffers a disability does not diminish the desirability of treating the client is necessary to authorize contact unrepresented! Texas attorneys must follow from the Texas Disciplinary Rules of Professional Conduct NYRPC. Oil Co. v. Bernard, 452 U.S. 89, 104 ( 1981 ), 665 ( E.D at 511 Accord... 2011 ) with former Ethical Consideration 5-18 transactions or litigation at issue the entity itself can make that clear in!, jurors or even judges ) 735 F.Supp.2d 113 ( S.D.N.Y of treating the client advice or assistance that involved... Lawyer 's consent, not only those who are adverse to your client attorney, 297 made in with! Unless authorized by the law in Rule 4.2 prohibits contact when a lawyer reason. D ) sets forth the lawyer 's consent, not only those who are adverse to your client consent! Such contact permissible, setting for the criteria now in N.Y. 02 ( 2009 ) listen. Consequences for counsel, as well as the `` alter ego '' of proceeding. Must follow from the Texas State Bar 2011 ) with former Ethical Consideration.... For this months articles ( April 2015 ) who can bind the organization is represented person may have in... Corp., 152 F. Supp will attempt to provide further practical guidance on how lawyers can avoid afoul. Allows, in certain situations practical exigency may require a lawyer to act for a client an!
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