Hello everyone and welcome to this JACPA Ethics Alert! The ABA Standing Committee on Ethics and Professional Responsibility recently released Formal Ethics Opinion 11-461 (August 4, 2011) Advising Clients Regarding Direct Contacts with Represented Persons and this Ethics Alert will discuss the Opinion. As I have previously indicated, ABA (and The Florida Bar) Ethics Opinions are not binding or precedential; however, the Opinions are intended to provide guidance to lawyers and can be important to show diligence and good faith if any issues come up in the future.
The ABA Formal Opinion states that even if parties to a matter are represented by counsel, they have the right to communicate directly with each other and it is sometimes is desirable for them to communicate directly with each other. The Opinion then discusses whether it is ethically proper under the ABA Model Rules for a lawyer to assist a client with communications between the client and a person/adversary that the lawyer knows is represented by counsel.
The Opinion concludes that “a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who (the lawyer or the client) conceives of the idea of having the communication. “
The Opinion prefers the approach taken in Restatement §99 Comment (k) which approves a lawyer’s assistance and advice regarding the content of communications that the client wants to have with a represented person and states that a lawyer may review, redraft and approve a letter or a set of talking points that the client has drafted and wants to use in communications with the represented person/adversary.
The Opinion cautions; however, that a “lawyer must be careful not to violate the underlying purpose of Rule 4.2 (substantially the same as Florida Bar Rule 4-4.2 Communication with Person Represented by Counsel)” in advising the client and avoid overreaching and interference with the client-lawyer relationship.
“Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.” “To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information.”
Bottom line: According to this ABA Formal Opinion, a lawyer can assist a client in communicating with a represented person/adversary/spouse; however, a lawyer must not only avoid violating the Bar Rules; but I recommend that the lawyer also take steps (preferably in writing) to protect him or herself from allegations of overreaching and/or using the client as an agent to circumvent Rule 4-4.2 and communicate directly with a represented person.
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or anyother ethics, risk management, or other issues, please do not hesitate to contact me.
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