Viewed after the fact, however, inferences tend to be in favor the layman. Georgia Rules of Professional Conduct - State Bar of Georgia 764, 1990 U.S. Dist. to deal with the self-represented, and to deal with them efficiently, Such unrepresented parties are known as pro se litigants.. {{currentYear}} American Bar Association, all rights reserved. Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. Coming to Terms When Negotiating with a Non-lawyer (United States) In-House Counsel Ethically Dealing with Represented Parties Rule 4.02dealing with a represented party. Ct. Civ. Back to Rule | Table of Contents | Next Comment, American Bar Association 8. A persons knowledge may be inferred from circumstances. As a technical matter, then, the common interest doctrine appears more reminiscent of the co-client scenario because the single attorney/firm (arguably) represents the interests of both the insured and the insurer against the common third-party adversary. United States v. Okun, 281 F. Appx 228, 23132 (4th Cir. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is . Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Litig., No. Committee held that it was improper for an attorney representing a party seeking a divorce to confer with an adverse party for the purpose of persuading the adverse party to . Thus, in litigation involving more than two parties, it is conceivable that overlapping alliances can form, each of which is protected by a joint defense or common interest privilegeeven though the members of each privileged group are otherwise opponents. Under the Model Rule 4.2, Official Comment [7] does not use the term managerial authority, but rather prohibits communications with one who supervises, directs or regularly consults with the organizations lawyer concerning the matter. See Restatement (Third) of the L. Governing Laws. But many lawyers might have only a tenuous grasp of what the common interest privilege is. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. 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. 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. Cir. draconian supervision of sole and small firm practitioners, and in where The defendant manufacturer argued, with at least some superficial appeal, that the plaintiff and the defendant processor could not claim a joint privilege because they were literal adversaries on opposite sides of the v. in litigation. 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. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver.28, Some courts have even suggested that communications qualify for common interest privilege protection only where the attorneys communicate with each other.29 If the clients directly communicate with each other, or if the attorneys for one client group communicate directly with the other client group, the privilege might not survive.30 However, at least one case has indicated that the common interest privilege can apply to communications between an attorney from one client group and a client represented by another attorney who is not actually a party to the communication.31. (b) Notwithstanding the . 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. 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. When You Can Contact Others Who Are or Were - New York Legal Ethics To increase the odds that a court will honor a claim of the common interest privilege, the following pointers can help. You Can't Touch ThisA Look at the Anti-Contact Rule Even in the current legal services market, where there is a trend for corporate clients to in-source legal work,many continue to rely on outside help for litigation and other matters, setting upa seeming choicefor an opponents counsel reach out toa companys inside lawyer, orcontact outside counsel. Texas Rule 4.02(c) prohibits contact with employees with managerial responsibility regarding the matter of representation and employees whose acts or omissions would make the company vicariously liable. at 310 (The weight of case law suggests that, as a general matter, privileged information exchanged during a merger between two unaffiliated business[es] would fall within the common-interest doctrine.); United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. 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. 2000). Wisconsin Lawyer: Dealing Fairly With an Unrepresented Person: Just as a communication must relate to a common interest among the clients and attorneys, the communication must also relate to a legal interest. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person. 35. Exchange of Information and Ex Parte Communications. LEXIS 7912, at *14 (E.D. The lawyer may still communicate with the party about subject matter B. The No Contact Rule: Common Scenarios and Best Practices 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 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. As such, a quick refresher is in order. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. The Texas Disciplinary Rules of Professional Conduct (Rules) differ from the ABA Model Rules (Model Rules) in material ways in this area. See Rule 8.4(a). The trial court agreed, ruling that discovery was permissible. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. 2007). This is a common situation: codefendants are often in the position of jointly denying that the plaintiff was harmed by anyone at all, but also arguing in the alternative that any harm was caused by the other defendant. United States v. Schwimmer, 892 F.2d 237 (2d Cir. Comment [1-2]ABA Model Rule Comments not adopted. . The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. [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. Quick Links . Rules of Professional Conduct Rule 4.3: Dealing with unrepresented 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. In this regard, the authorities have been somewhat inconsistent. PDF 2019. Published in The Judges' Journal, Vol. 58, No. 2, Spring 2019 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. 2019). . 31. Compare Rule 3.4(f). "It is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 1985) ([I]t is apparent that Cities did not waive the work product privilege attached to these documents by disclosing the documents to Gulf pursuant to the merger agreement. Is in-house counsel fair game for ex parte contact by opposing counsel? Tel. 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. 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. of Cal., 101 F.3d 1386, 1391 (Fed. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of [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. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said .