Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it proper for a bankruptcy trustee, who is a member of the State Bar of California, to communicate directly with parties to the bankruptcy proceeding who are represented by counsel?
Such communication is not prohibited.
Rule 2-100 of the Rules of Professional Conduct of the State Bar of California.
Many individuals appointed as trustees in bankruptcy proceedings are also members of the State Bar. Frequently, the other parties are represented by counsel, and, in some cases, the trustee will retain counsel. Whether the trustee is or is not represented by counsel, he or she often will wish to communicate directly with other parties, e.g., the debtor or particular creditors. We have been asked whether, in the absence of a party's attorney's consent, such communication is proper.
Rule 2-100(A) of the Rules of Professional Conduct provides that "[w]hile 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."
The Discussion following rule 2-100 states:
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. 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. . . . (Emphasis supplied.)1
Although a trustee may be an attorney, his or her role as trustee is as the representative of the estate of the debtor - i.e., a party to the proceeding who has the capacity to sue and be sued.2 Hence, under the clear language of both the rule and Discussion, the Trustee, as a party, is permitted to communicate directly with other parties to the proceeding.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.
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