attorney communication with unrepresented party

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. The majority view appears to be that the legal nature of the communications must predominate over other interests, such as business or personal interests, in order for the privilege to apply.23 The minority view takes a more expansive view of the privilege, not requiring that the communications be predominately about legal interests.24. to deal with the self-represented, and to deal with them efficiently, If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. The common interest privilege is an extension of the attorney-client privilege. The joint defense version of the attorney-client privilege applies during live litigation, as to both defendants in the same case and defendants in related, but separate, cases.7, Like the co-client version of the attorney-client privilege, the joint defense version appears to have originated in criminal law,8 though both the co-client and joint defense variants of privilege now apply in civil litigation as well.9, In addition, at least some courts recognize a joint plaintiff version of this extended privilege as well, which applies where plaintiffs are pursuing related litigation, whether in the same or different courts.10, Common interest privilege. 4.3.Dealing with Unrepresented Person. See, e.g., JP Morgan Chase, 2007 WL 2363311, at *4 (Prior to the merger, these organizations stood on opposite sides of a business transaction. [3] The Rule applies even though the represented person initiates or consents to the communication. Ultimately, the scope and content of communications with an unrepresented party, and the risk that such communications may be interpreted as legal advice by that party, will vary based on the sophistication, knowledge, and training of the unrepresented opponent. 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. only to communication about subject matter A. Visual Scene itself cited decisions from various federal courts, including the U.S. Courts of Appeals for the Third, Seventh, Ninth, and D.C. Circuits.22 Similar cases can be found in many other courts across the country. . The common interest attorney-client privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines. How does this common interest privilege relate to the common interest doctrine in the insurer/insured context? 103, 113 (S.D.N.Y. Rule 4.2 permits a lawyer to contact a represented party directly if the lawyer "is authorized by law to do so." The Comment to the rule states: "Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter." The no-contact rule is to protect uncounseled persons against being taken advantage of by opposing counsel and to safeguard the client-lawyer relationship from interference, the Committee said. Pa. 2012) (similar). For example, in the Visual Scene case from Florida,19 a plaintiff distributor of glass sued three defendants because the glass was allegedly defective. Co., 26 F.R.D. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. 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. Readers of this article are surely familiar with the basic elements of the attorney-client privilege: confidential communications between an attorney and a client for the purpose of giving or receiving legal advice are generally privileged against discovery in litigation.1 This privilege is widely regarded as the oldest and most venerable of all privileges, and courts respect the boundaries of the attorney-client privilege when it comes to discovery disputes.2. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. Taking the logic one step beyond the joint defense privilege brings us to the heart of this article: the common interest privilege allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counselbut this time without the requirement of active litigation (in most courts, at least).11 The validity of an assertion of a common interest privilege might not be tested until litigation arises, but the allegedly privileged communications can occur long before any such litigation arises or is even anticipated.12. 308, 310 (N.D. Cal. To avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. 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. hb```b`` b`a``d@ AfV8\ &0"utB63A E@$o. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 1036, 1047 (D. Del. 1987). 24. Likewise, the two defendants presumably would have been able to invoke a joint defense privilege to shield their communications against the plaintiff. The goal of this presentation is to highlight a number of standards that govern the decision-making process and to raise certain specific challenges that may arise, to assist counsel in striking the balance between zealously representing one's client and treating fairly the unrepresented person. [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. 4.4 Respect for Rights of Third Persons. Emer. Digest : It would be misleading for a lawyer to depose an unrepresented party to a lawsuit, who is not aware . See, e.g., La. In doing so, this article will review some situations in which the common interest privilege is likely to arise, including some scenarios particularly pertinent to this audience, such as product defect litigation and insurance disputes. E. Transmission Corp. PCB Contamination Ins. Communicating with unrepresented persons poses a . Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. Because there can often be a need for lawyers to include outside individuals as part of their team for the purpose of providing the client the best and fullest representation, the law has created many exceptions to the rule that the sharing of an otherwise privileged communication can destroy the privilege. See, e.g., United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1. 13. App. She is a member of the Ohio Supreme Courts Commission on Professionalism, a former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of. Sometimes an issue arises just trying to figure out which rule applies. Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. (b) Notwithstanding the . Back to Rule | Table of Contents | Next Comment, American Bar Association 2005). As such, a quick refresher is in order. In sum, the common interest attorney-client privilege and the common interest doctrine can overlap in litigation and are in a sense related, but practitioners should be sure to avoid conflating these separate lines of cases. This is a short, sweet, yet powerful statement reiterated many times by different committees, sections, and sources within the Florida Bar, with respect . 2d 454, 454 (E.D. But by focusing on the essential elements of the privilege, taking care to review case law in the pertinent jurisdiction, and employing some of the pointers in this article, a lawyer can make the most of the privilege and shield potentially damaging documents from production in litigation. 4.4.Respect for Rights of Third Persons. ABA Formal Opinion 472 (2015) The ABA Standing Committee on Ethics and Professional Responsibility released an ethics opinion addressing the obligations of a lawyer when communicating with a person who is receiving limited-scope representation. In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. In some circumstances, however, a party represented in one case may be deemed represented in another related case.Ftn4 Consent Exception: After an attorney requests the party's attorney to consent to the proposed contact, Likewise, the ABAsFormal Op. 407, 417 (N.D. Ill. 2006) (While Noranda and Falconbridge shared a common business interest, they also shared a common legal interest regarding compliance with antitrust and other laws affecting the sale of sulfuric acid.). 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. Rule 7.01. The meeting was held. draconian supervision of sole and small firm practitioners, and in where [2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyers client and those in which the persons interests are not in conflict with the clients. : Opinion # 18-03 Use of tracking software in emails or other electronic communications : Opinion # 18-01 Direct communication with government representatives : Opinion # 13-09 The common interest doctrine is typically invoked in two related circumstances. Without more, this conduct does not violate Rule 4.02 because you do not know the company is represented in this matter. 2d 948, 952 (W.D. 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. This reasoning relies heavily on the fact that the client did not have advice of counsel in deciding to fire his lawyer. 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. Accordingly, the common interest doctrine can be invoked both offensively (as a sword by the insurer against the insured) and defensively (as a shield by the insurer and the insured jointly against the third-party claimant). 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. 3. Can we talk? Rule 4.02dealing with a represented party. 4.2 Communication Between Lawyer and Person Represented by Counsel. Transmirra Prods. Lawyer in Buckhannon, WV serving the people of North Central WV. 2002) (rejected common interest privilege because one party was not represented by counsel); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 764, 1990 U.S. Dist. See Rule 4.4. Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. Mich. May 27, 2008) (discussing potential intellectual property issues, but not necessarily litigation). Model Rule 4.3 addresses the ethics of communicating with unrepresented parties. Every lawyer (hopefully) knows what the attorney-client privilege is. 261 0 obj <>stream If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. The ABAs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection. To ensure accuracy of Morales. Subparagraph (b) prohibits a lawyer from contacting a person . 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. 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. 6. . As such, the precise contours of the common interest privilege are not fully settled across the country, and future cases will be needed to bring further clarity to this area of the law. of Cal., 101 F.3d 1386, 1391 (Fed. 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. This Article is published for general information, not to provide specific legal advice. 4.3 Dealing with Unrepresented Person. 57, In re Blue Cross Blue Shield Antitrust Litig., MDL No. . To unpack the common interest privilege, it is useful to analyze each term, starting with the meaning of common., The case law varies regarding the precise meaning of common. At the most restrictive end of the spectrum, some cases indicate that a common interest means an identical interest.13 But other cases state that something less than identical interests can suffice to trigger the privilege.14 In fact, some courts at the most liberal end of the spectrum have recognized that the common interest privilege can apply even where the parties invoking the privilege have adverse interests in some respects.15, One oft-litigated scenario in this area is the situation of arms-length transactions, such as mergers and/or acquisitions (M&A). 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. the attorney is positioned to take advantage of the unrepresented person in ways that would not be possible if the person were represented; helping the unrepresented person could frustrate legitimate interests of the lawyer's client; and contacts between the lawyer and the unrepresented person most often occur outside of the courthouse. 30. SC Rule 4.2 - Communication with person represented by counsel 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. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. over 70% of litigants are self-represented, any attorney who refuses Co-client and joint defense/plaintiff privileges. 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 parties themselves should not directly communicate with each other and probably should not communicate directly with the other parties attorneys either. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. CBA's Rule 4.3 addresses "communication with an unrepresented person" and can be seen here: Rule 4.3 Communicating with an Unrepresented Person (a) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. Rule 4.02(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. Ct. Mar. Managing a file with a self-represented (unrepresented) opposing party can be challenging - in some cases, misunderstandings, protracted proceedings, and additional expense to the lawyer or paralegal's client result. The courts reasoning in Visual Scene presumably would have extended equally to communications between the plaintiff and the defendant manufacturer regarding a common legal theory of liability against the defendant processor. The disclaimer "I am only representing your spouse" should be made in virtually every communication to the unrepresented party and should advise the pro se party to hire his/her own attorney. Moreover, with common interests on a particular issue against a common adversary, the transferee is not at all likely to disclose the work product material to the adversary.21. 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. & Tel. Rule 4.03dealing with an unrepresented party. 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. See Rule 8.4(a). (Adopted Aug. 7, 1985, eff. The rules regarding whether a lawyer can communicate with a person represented by counsel are straightforward: . 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. /content/aba-cms-dotorg/en/groups/tort_trial_insurance_practice/publications/the_brief/2020-21/summer/common-interest-privilege-what-exactly-is-it-when-does-it-apply, Tort Trial and Insurance Practice Section, Summer 2021 | The Duty to Protect from Third-Party Harm. Sys. And, in any event, it is always wise to leave attorneys in charge of any privileged communications because attorneys are usually more careful with such communications. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. The claimant considered the offer too low, and the claimants lawyer directly contacted a council member to try to get a better deal. Attorneys can also directly communicate with each other on behalf of their clients. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyers client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. In this vein, some courts have recognized that third-party claimants are not entitled to communications exchanged among the insured, its counsel, and the insurer.32 Thus, the insurer is often not considered a third-party interloper that destroys the privilege. Schachar v. Am. As for what types of legal interests qualify, compliance with particular laws is an easy example of a purely legal interest.25 Other situations, where both legal and commercial interests are intertwined, present closer calls. [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In 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. See, e.g., Regents, 101 F.3d at 1386 (The privilege need not be limited to legal consultations between corporations in litigation situations, however. 11. Servs., was careful to require Plaintiff's attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel . Some courts on the restrictive end of the spectrum have held that premerger negotiations between separate entities are not protected by the common interest privilege. (9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. Seealso Restatement (Third) of the Law Governing Lawyers 100 cmt. 1985) (identical, not similar interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency's lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing 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. . 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. To the contrary, they were in the initial stages of becoming parent and subsidiary.); Morvil Tech., LLC v. Ablation Frontiers, Inc., No. See Model Rules of Prof'l Conduct r. 4.3. 31. 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. 21. The ability to make the client vicariously liable was crucial to Texas State Bar Ethics Committee Opinion 492 (June 1992). The same standards that will screen certain parties out of mediation will sometimes make this approach impossible. Co., 619 F. Supp. 1996) (The privilege need not be limited to legal consultations between corporations in litigation situations . Gulf and Cities were obviously not adversaries at the time of the disclosure. For example, when a third party is necessary to convey legal advice (such as an accountant helping to translate dense financial information for the benefit of the client, or a Russian translator communicating with a non-English-speaking client), many jurisdictions refuse to find that engaging in communications or sharing documents with such a third party results in waiver.4 And when a third-party contractor is the functional equivalent of an employee, communications among an entity, the entitys attorney, and the entitys functional employee typically remain privileged.5. and selecting the appropriate Search Type (e.g., Case Number, Party Name, Business Name, Attorney Name, Attorney Bar Number, Judicial Officer, or Courtroom). See Rule 2-100 (B) (1)- (2). Evaluates third-party injury claims. 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. When a lawyer is notified that another lawyer is entering a limited appearance in a matter, the lawyer must communicate with that lawyer regarding the issue, even where the lawyer has previously spoken directly with the pro se party. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. But including such language in a communication can help support a claim of privilege because such claim will not appear to be merely revisionist, wishful thinking by a litigator. Attorney-Client Privilege, Blacks Law Dictionary (11th ed. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. But there are also additional requirements to bear in mind specific to the common interest flavor of privilege. 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. California Rule of Professional Conduct 2-100 (A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer. First, when disputes arise between an insurer and an insured as to coverage of an underlying settlement or judgment in favor of a third party, the insurer often seeks discovery of materials shared between the insured and its counsel in the underlying case. 609, 634 (M.D. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13 (d). Jan. 1, 1986. . It lays out three requirements for communicating with an unrepresented party: [A] lawyer shall not state or imply that the lawyer is disinterested. Consider memorializing an agreement among client groups and their counsel to prove that they share a common legal interest. 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. Another aspect of the problem arises when a party claims that it no longer has a lawyer in a matter. Depending on the importance of the communication in question, such waiver can result in great harm to a case. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). On any contested issues, no privilege could exist between the two parties. In-house counsel and opponents lawyer can communicate, says Va. opinion, Op. Rule 4 Transactions With Persons Other Than Clients. Oh, I fired my lawyer and other lies frustrated laymen tell. 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). Of course, a court is not bound to uphold a claim of privilege simply because the attorneys wrote subject to common interest privilege on a document. 2019). The seminal case in this area is United States v. Kovel, 296 F.2d 918, 919 (2d Cir. 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. 2:13-cv-20000-RDP (N.D. Ala. July 6, 2017). This article will presume readers familiarity with those elements. 5-200 (Trial Conduct) 3.4 (Fairness to Opposing Party & Counsel) 5-220 (Suppression of Evidence) 5-310 .
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