. These statutes protect a variety of other rights such as the right of employees to organize and to engage in collective bargaining, employee health and safety, or equal employment opportunity. . Some page levels are currently hidden. (See Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131 [261 Cal.Rptr. endstream endobj 2978 0 obj <. [1]This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of confidential information relating to the representation. Similarly, Texas State Bar Ethics Committee Opinion 488 (December 1992) involved a dispute (but not litigation) between a client and a finance company. 1998). (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Paragraph (a) does not, however, prohibit communication between a lawyer's client and persons, organizations, or entities of government represented by counsel, as long as the lawyer does not cause or encourage the communication without the consent of the lawyer for the other party. The Texas Disciplinary Rules of . This is because the client is the principal and the lawyer is the agent, thus as a matter of law the lawyer cannot direct the client to do anything. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party. A determination that an attorney-client relationship was created could be devastating both to the in-house lawyer (for ethical and malpractice reasons) and to the client (per Rule 1.09 and the definition of Firm, if the lawyer has a conflict of interest and is disqualified, then the entire in-house department is disqualified). The trial court denied defense counsels motion to disqualify plaintiffs counsel, but the Texas Court of Appeals reversed (relying on ABA Formal Ethics Opinion 95-396) and held that if retained counsel has entered an appearance in a matter, whether civil or criminal, and remains counsel of record, with corresponding responsibilities, the communicating lawyer may not communicate with the person until the lawyer has withdrawn her appearance. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Fees 16 Rule 1.05. There is again a material difference, however. . then you know the other party is represented in that matter. 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. Consent of the organizations lawyer is not required for communication with a former constituent. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably . . Knows is defined in Texas Rules as denot[ing] actual knowledge of the fact in question. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. The Commission for the Revision of the Rules of Professional Conduct ("Commission") evaluated current rule 2-100 (Communication With a Represented Party) in accordance with the Commission Charter. Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. The Rule applies even though the represented person initiates or consents to the communication. 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. This Rule allows a lawyer to pay for advertising and communications, including the usual costs of printed or online directory listings or advertisements, television and radio airtime, domain-name registrations, sponsorship fees, and group advertising. 2977 0 obj <> endobj Without more, this conduct does not violate Rule 4.02 because you do not know the company is represented in this matter. Rule 4.02dealing with a represented party. An official website of the Commonwealth of Massachusetts, This page, Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel, is, Adopted March 26, 2015, effective July 1, 2015. 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 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made. Corporate Counsel Section, State Bar of Texas - Spring-II Edition 2013 Newsletter. 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. Significant in all analyses of Rules 4.02 and 4.03 are the limitations that the lawyer knows the other party to be represented in the subject of the representation, i.e., the matter. See Rule 4.4. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. In addition, the Commission considered the national standard of ABA Model Rule 4.2 (concerning communications with a represented person) and the . 2985 0 obj <>/Filter/FlateDecode/ID[<43B82C1BBF0B294AB82FAEC86B68FC13><9351F191F1BC8646801E95D4B1CE2372>]/Index[2977 15]/Info 2976 0 R/Length 59/Prev 784536/Root 2978 0 R/Size 2992/Type/XRef/W[1 2 1]>>stream Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. A lawyer may not make a communication prohibited by this Rule through the acts of another. 2005). . When dealing with a represented party, care should be taken to respect a partys relationship with its attorney. (See, e.g., Cal. 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. [6]A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. Ct. Civ. Dealing With Unrepresented Person 81 . avoid any communication with the adverse party that in the circumstances would constitute "conduct involving dishonesty, fraud, deceit or misrepre-sentation" in violation of Rule 8.04(a)(3). 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. A lock icon ( See Rule 4.4. 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. [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. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. 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. Oh, I fired my lawyer and other lies frustrated laymen tell. See Rule 1.0(f). Why Contact Current and Former Employees of a Opinion 492 agreed with the city attorneys position: [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply. 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 4.02dealing with a represented party. Rules of Court, Rules 3.35 3.37; 5.425 - (Limited Scope Representation).) Rule 4.2 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. on Ethics & Prof'l Responsibility, Formal Op. . (Rule 4.02 prohibit[s] communications by a lawyer for one party concerning the subject of the representation with persons having a managerial responsibility on behalf of the organization that relates to the subject matter of the representation.). . ) or https:// means youve safely connected to the official website. It's time to renew your membership and keep access to free CLE, valuable publications and more. One set of issues that regularly arises for in-house counsel involves dealing with represented parties, and a different set of issues arise when dealing with unrepresented parties. Mass.gov is a registered service mark of the Commonwealth of Massachusetts. After discussing Rules 4.02 and 4.03, the Ethics Committee concluded: No Disciplinary Rule was violated if the attorney advised the client only to request a statement as to his account balance and a written statement of his account, and bring it to him for review, regardless of whether the finance company had in-house or outside counsel, or no attorney. Since A is employed by the opposition, the member cannot give independent advice. In this regard, the authorities have been somewhat inconsistent. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline. The phrase cause or encourage is not found in the Model Rules, and can make a significant difference when the client or Texas lawyer thinks the other lawyer is the problem (as is so often the case). 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[2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. [8] This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. SeeRule 1.0(h). The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. This reasoning relies heavily on the fact that the client did not have advice of counsel in deciding to fire his lawyer. [3] The Rule applies even though the represented person initiates or consents to the communication. The differences highlight areas of disciplinary emphasis that Texas lawyers should be aware of at all times, and especially when dealing with attorneys from other states. for Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel, to Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel. Model Rule 4.3 expressly prohibits the lawyer from giving legal advice to an unrepresented person (other than the advice to get a lawyer). 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. . 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. A lawyer must immediately terminate communication with a person if the lawyer learns that the person is one with whom communication is not permitted by this Rule. [1] This rule covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. . Other applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law. 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. Rule 4.03 provides that when dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. Nevertheless, a lawyer may not orchestrate a communication between a client and a represented person in an effort to circumvent this rule. As amended through July 25, 2022. 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. In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. 493]. This same admonition is found in the one and only Official Comment to Texas Rule 4.03. Bar Ass'n); see also ABA Comm. . Confidentiality of Information 22 . (2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. We will use this information to improve the site. 4.02 Communication with One Represented by Counsel 74 4.03 Dealing With Unrepresented Person 76 4.04 Respect for Rights of Third Persons 76 . Rule 2-100 also addresses the situation in which member A is contacted by an opposing party who is represented and, because of dissatisfaction with that party's counsel, seeks A's independent advice. Another aspect of the problem arises when a party claims that it no longer has a lawyer in a matter. This page is located more than 3 levels deep within a topic. Transactions with Persons Other than Clients, Chapter 7. Morales. for the purpose of conferring with or advising another lawyer . At that point, you need to cut off the conversation immediately until you get the lawyers permission to speak directly to the other party. %PDF-1.5 % Even though plaintiffs counsel had not officially withdrawn from representing this plaintiff in the matter, the Texas Supreme Court determined that it was acceptable for defense counsel to meet directly with the plaintiff in part because the plaintiff may have had good reason not to notify his counsel, who was also representing other plaintiffs. [1] 162 S.W.3d 825, 833 (Tex. These include ethics rules regarding contact with unrepresented per-sons and not violating the rights of third parties. Compare Rule 3.4(f). Texas Rules of Disciplinary Procedure. endstream endobj startxref Rules of Professional Conduct Rule 2-100 Communication With a Represented Party (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. Moreover, the rule does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. [2]This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. 4. Rule 4.3 Downloads CompareRule 3.4(f). The ABAs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection. [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. (1) Communications with a public officer, board, committee, or body; or, (2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice; or. (B) For purposes of this rule, a "party" includes: (1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or. Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule. Rule 4.03dealing with an unrepresented party. [9]In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyers communications are subject toRule 4.3. APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT: ER 4.2 Communication with Person Represented by Counsel. Massachusetts rules of court and standing orders, Massachusetts Supreme Judicial Court Rules, Supreme Judicial Court Rule 3:07: Rules of Professional Conduct, Comment amended July 13, 2022, effective October 1, 2022, Rules of Professional Conduct (SJC Rule 3:07) Table of contents, Rules of Professional Conduct Rule 4.2: Communication with person represented by counsel. Model Rules of Prof'l Conduct r. 4.2 cmt. 92-362 (1992). is required or permitted by the Texas Disciplinary Rules of Professional Conduct or o ther law. There is no material difference between Texas Rule 4.02 and Model Rule 4.2 that would affect this ABA analysis, so ABA 06-443 could be persuasive authority in Texas. To illustrate, suppose you are in-house counsel working on a contract with a company that has in-house counsel, but you are dealing with someone in the Procurement Department who is not a lawyer. 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. This means that the lawyer has knowledge of the fact of the representation; but such knowledge may be inferred from the circumstances. Rule 1.03 - Communication. 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. 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