10-CV-2088, 2012 WL 760603 (S.D. (Adopted Aug. 7, 1985, eff. 1783, 2007 WL 2363311, at *4 (N.D. Ill. Aug. 13, 2007) (finding that companies seeking to merge didnt have identical interests; therefore, premerger discussions were not privileged); Union Carbide Corp. v. Dow Chem. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. 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. E-Tailer Liability for Defective Products Sold by Third-Party Vendors, Insurance in a Post-Pandemic World: New and Renewed Challenges, American Bar Association . 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. Such unrepresented parties are known as pro se litigants.. Legal doctrine that impedes frank communication between buyers and sellers also sets the stage for more lawsuits, as buyers are more likely to be unpleasantly surprised by what they receive. Consider memorializing an agreement among client groups and their counsel to prove that they share a common legal interest. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Rule 4.3 of the California Rules of Professional Conduct provides guidance and governs a lawyer's communications with unrepresented persons. Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to email a link to a friend (Opens in new window), West Virginia Lawyer - Tips and Techniques. Rule 4 Transactions With Persons Other Than Clients. Mun. Every lawyer (hopefully) knows what the attorney-client privilege is. Communicating with unrepresented persons poses a . Seealso Restatement (Third) of the Law Governing Lawyers 100 cmt. 2. 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. Id. 12. hbbd```b``"IO
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. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered Yes, in an opinion that also covered someother issues of concern to in-house counsel. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. several similar examples from the Cali fornia Rules of Court that clarify the use of "counsel" by referring to "an unrepresented party." . Ct. Civ. This same admonition is found in the one and only Official Comment to Texas Rule 4.03. 2008) (noting that common interest privilege allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others). Ct. App. 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. See, e.g., Regents, 101 F.3d at 1386 (The privilege need not be limited to legal consultations between corporations in litigation situations, however. and transmitted in writing. 30. When encountering different courts discussions of the co-client, joint defense/plaintiff, and common interest privileges, attorneys might find that the nomenclature varies from one jurisdiction to another. Another aspect of the problem arises when a party claims that it no longer has a lawyer in a matter. 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. L. Inst. The meeting was held. Acad. The agreement can contain details about the nature of the common interest, including the legal questions that predominate, and call for coordination among the various clients and counsel. 2007-1 (N.Y. City Bar Assn Jan. 1, 2007) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objectivegood faith belief that in-house counsel is acting as entitys lawyer may communicate with in-house counsel of a party known to be represented by outside counsel). Attorney Sondra Harris notes: "It is important not to overreach or try to make an agreement 'too good' when . 2008) ([T]he Third Circuit has not specifically adopted such a stringent approach.); In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. The ABAs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection. But many lawyers might have only a tenuous grasp of what the common interest privilege is. Va. 2008). Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee. This is not surprising because these extensions of the attorney-client privilege are relatively new in the case law and the courts are still working through the fine distinctions. 1036, 1047 (D. Del. 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. 1997) (accord). Advertisements 100 Rule 7.03. This article will examine the nuts and bolts of the common interest privilege. 187 (N.D. Ill. 1985). Yet, in a carefully written opinion, the court recognized that parties can share a common legal interest as to one or more issues while not sharing any such interest as to other issues. 4.3 Dealing with Unrepresented Person. Rule 7.01. A persons knowledge may be inferred from circumstances. at 44243 (quoting United States v. Am. 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. 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 reasoning relies heavily on the fact that the client did not have advice of counsel in deciding to fire his lawyer. 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. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. or otherwise inconsistent with the proper tone of a professional communication from a lawyer or paralegal [rule 7.2-4 of . Executive Committee LAWYER ASSISTANCE PROGRAM LAP is a confidential service outsourced to CorpCare Associates, Inc., to help State Bar members with life's difficulties. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. . All rights reserved. 29. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation such that the insurer is entitled to the defense counsels materials. 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. 28. [3] The Rule applies even though the represented person initiates or consents to the communication. 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). [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is . Compare Rule 3.4(f). 2d 948, 952 (W.D. Police Emps. 76 (Am. Ret. 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. The joint defense privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counselall without allowing their common adversary (the plaintiff) to discover those communications. 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 the Ohio State Bar Associations Ethics Committee. 80, 2016 WL 3188989 (N.Y. June 9, 2016). 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. See Model Rules of Prof'l Conduct r. 4.3. 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. 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. Thus, a relatively low-level employee who regularly consults with the lawyer on the matter would be within the representation under the Model Rule, but not the Texas Rule. 261 0 obj
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Likewise, the ABAsFormal Op. ABA. . The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. Gulf and Cities were obviously not adversaries at the time of the disclosure. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. . 2007) ([T]he communication must be shared with the attorney of the member of the community of interest. The seminal case in this area is United States v. Kovel, 296 F.2d 918, 919 (2d Cir. Just as a communication must relate to a common interest among the clients and attorneys, the communication must also relate to a legal interest. . then you know the other party is represented in that matter. Communications Concerning a Lawyer's Services 96 Rule 7.02. Coverage Litig., MDL No. v. Sealed Air Corp., 253 F.R.D. 71 0 obj
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Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. Building upon the co-client privilege, the next extension of the privilege was to add not only more clients to the equation but also more attorneys. 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. . [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. To ensure accuracy of 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, Committee on Professional Ethics. to deal with the self-represented, and to deal with them efficiently, 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. e (Am. 2d 52, 61 (D. Mass. 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. Comment | Table of Contents | Next Rule [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. Subparagraph (b) prohibits a lawyer from contacting a person . Allowing the parties to engage in communications might create a waiver by definition. The city attorney told the labor attorney to cease communicating with city employees whose act or omission make the city liable without the city attorneys consent. Restatement (Third) of the L. Governing Laws. See Rule 8.4(a). App. you meet with the pro se party. 8, 2012) (potential merging parties had common interest in determining whether their products would infringe). Therefore, it is always imperative for a practitioner to look for precedent in the controlling jurisdiction and, failing that, look for persuasive case law or secondary authorities (like the Restatement) elsewhere. 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. 17. . 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. 1985) (identical, not similar interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 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. Sometimes an issue arises just trying to figure out which rule applies. 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. 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. Comments or inquiries may be directed to: John M. Tanner, Designed by Herrmann Advertising | Branding | Technology. To be sure, communications between the plaintiff and the defendant processor on many other issues were probably not privileged because those two parties were actively litigating against each other regarding the defendant processors alleged liability. Consent of the organizations lawyer is not required for communication with a former constituent. Evaluates third-party injury claims. Slaughterhouse Deregulation: A View of the Effects on Animals, Workers, Consumers, and the Environment, A Link in the Chain? 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. or will be emailed to unrepresented parties following the hearing. See, e.g., Semsysco GmbH v. GlobalFoundries, Inc., No. The court likewise found that the work product exchanged between the plaintiff and the defendant processor was protected from discovery. It's time to renew your membership and keep access to free CLE, valuable publications and more. 1. Morales. Rules of Professional Conduct Rule 4.3: Dealing with unrepresented person Table of Contents Rule 4.3 Comment Downloads Contact Rule 4.3 Downloads Massachusetts Supreme Judicial Court Rules and Orders Contact Trial Court Law Libraries + Updates: Adopted March 26, 2015, effective July 1, 2015 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. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. [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. of Cal., 101 F.3d 1386, 1391 (Fed. [2] 974 S.W.2d 97, 104 (Tex. 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. 11. By refusing to find waiver in these settings courts create an environment in which businesses can share more freely information that is relevant to their transactions. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. His practice primarily focuses on business litigation, financial, insurance, and products liability matters. To extend the common interests privilege to parties aligned on opposite sides of the litigation for another purpose is not inconsistent with any policy underlying the attorney-client privilege and merely facilitates representation of the sharing parties by their respective counsel.20 Insofar as the plaintiff established that it suffered damages, both it and the defendant processor shared an interest in proving that the defendant manufacturer was liable for some (if not all) of the damages. Family: Wife, Rosemarie; and sons, John (22) and Joseph (17). 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. 19. . 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 parties themselves should not directly communicate with each other and probably should not communicate directly with the other parties attorneys either. : Opinion # 18-03 Use of tracking software in emails or other electronic communications : Opinion # 18-01 Direct communication with government representatives : Opinion # 13-09 308, 310 (N.D. Cal. In In re News America Pub., Inc., supra, the defendant wrote a letter claiming he was no longer represented by any attorney in this matter and asked for a meeting with plaintiffs counsel. Ins. 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. This is the same material found in Official Comment [4] to Model Rule 4.2. Similarly, Texas State Bar Ethics Committee Opinion 488 (December 1992) involved a dispute (but not litigation) between a client and a finance company. Emer. (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. Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.). Cir. 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 . . . . "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. Two of the defendants were involved with manufacturing the glass, while the third defendant processed the glass. 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. To increase the odds that a court will honor a claim of the common interest privilege, the following pointers can help. 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. Lawyer in Buckhannon, WV serving the people of North Central WV. Rule 4.2 and its comments describepermissive exceptionsincluding contacts that areauthorized by law (such astheconstitutional right to petition the government)or a court order, or that dont relate to the subject of the dispute. Viewed after the fact, however, inferences tend to be in favor the layman. 07-CV-10945, 2008 WL 2217682, at *3 (E.D. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. The common interest attorney-client privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines. In this way, each additional client of the same attorney is not considered a third party who can trigger waiver and thereby destroy the privilege. Pa. June 27, 1990) (rejecting application of common interest doctrine because retention of independent counsel signaled that the scope of the shared interest was uncertain), with Waste Mgmt., Inc. v. Intl Surplus Lines Ins. But upon issuing an extraordinary writ of certiorari, the appellate court reversed the trial court, finding that the communications were privileged from discovery. MORE INFO Member Directory Georgia Rules of Professional Conduct [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. {{currentYear}} American Bar Association, all rights reserved. Once Lawyer A obtains a court order authorizing the transfer of the active representation to Lawyer B, and presuming Lawyer A has otherwise complied with the written notice requirement set out in Rule 1.17(c) (see Opinion #3), Lawyer A may transfer the current client's client file and prospective responsibility for the representation to Lawyer . . Mut. sophistication of the unrepresented party, as well as the setting in which the explanation occurs;1 If you communicate with the unpresented party, obtain the party's consent to continuing the conversation; You may recommend that the unrepresented party engage the services of their own lawyer; Do Not Give Legal Advice In-house counsel and opponents lawyer can communicate, says Va. opinion, Op. Other jurisdictions have arrived at conclusions similar tothe Virginia Ethics Committees. The Rules of Professional Conduct / NYSBA NY Rules of Professional . [1] 162 S.W.3d 825, 833 (Tex. lawyer's word should be his or her bond. a. Non-Illinois lawyer sending demand letter to Illinois business on behalf of Illinois resident Opinion #23-02 Division of Fees; Law Firm Partnership and Employment Agreements; Restrictions on Lawyer's Practice: Shareholder agreement requiring departing lawyer's new firm to pay former firm portion of fees earned from former firm clients 2022 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. While the. 4.1 Truthfulness in Statements to Others. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. The more imminent that litigation appears, the more likely it might be that the attorneys advice is predominately legal in nature. (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. Given that most pro se litigants are not lawyers and do not understand court rules or the workings of courtrooms and litigation matters, litigating a case against a pro se litigant can be difficult and costly. Rule 4.2 (b) permits communications with a represented elected official under the following circumstances: (1) in writing, if copied to the opposing lawyer; (2) orally, upon adequate notice to the opposing counsel; or (3) in the course of official proceedings. You can touch this. The lawyer may still communicate with the party about subject matter B. 9. 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. 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. 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). The common interest privilege has been tested in cases beyond the M&A context as well. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. 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. In confirming thata lawyer is generally permitted to communicate with a corporate adversarys in-house counsel about a case in which the corporation has hired outsidecounsel, the Virginia State Bar Associations Standing Committeeon Legal Ethics referred to the purpose of Rule 4.2. 90 0 obj
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1.5 When dealing with an opposing party in an 'unbundled' matter, a solicitor should, prior to any communications or negotiations concerning an aspect of the matter, ensure that the party is not in fact represented in that particular aspect. Ct. App. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. 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.
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