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.
|
Attorney represents husband in pending dissolution action. Wife is separately represented by counsel. Husband wishes to communicate directly with his wife without either counsel present regarding the merits of the dissolution to attempt to resolve various disputed issues. Husband seeks guidance from his attorney regarding the content of and strategy to be pursued during such communication. To what extent, if any, may the attorney give such guidance to husband without violating rule 2-100 of the California Rules of Professional Conduct.
Rule 2-100 of the California Rules of Professional Conduct prohibits direct and indirect communication with a party represented by counsel. Any direct communication on the merits of a dispute in writing, by telephone, face-to-face or otherwise between an attorney and an opposing party known to be represented by counsel is prohibited unless opposing counsel consents. The parties, however, have the right to communicate with each other without their counsel present. When the content of such communication originates with or is directed by the attorney, the communication is prohibited as indirect communication under rule 2- 100. When the content of such communication originates with and is directed by the client and not the attorney it is a permitted communication under the rule.
Rule 2-100 of the California Rules of Professional Conduct of the State Bar.
The question posed is not unique. It is most often encountered in legal disputes which involve on-going relationships between the opposing parties such as in family law and employment disputes. However, the question can arise whenever parties to a dispute, negotiation, business transaction or other matter are each represented by separate counsel, and desire to communicate between themselves without their counsel present regarding the merits of the dispute, but desire the assistance of their counsel in doing so.
Rule 2-100 of the California Rules of Professional Conduct states in pertinent part:
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.
Rule 4.2 of the American Bar Association, Model Rules of Professional Conduct is similar.1
This rule and its predecessors have a history of being strictly enforced in California. The Supreme Court of California has found the rule necessary to preserve the attorney-client relationship and the proper functioning of the administration of justice. According to the Supreme Court of California, the rule is designed to shield opposing parties not only from an attorney's approaches which are intentionally improper, but from approaches which are well intended but misguided. (Abeles v. State Bar (1973) 9 Cal.3d 603, 609 [108 Cal.Rptr.359, 510 P.2d 719].) The rule is designed to permit an attorney to adequately function in the proper role of an attorney and to prevent the opposing attorney from impeding that performance. The rule anticipates that if a party's counsel is present when an opposing attorney communicates with that party, counsel can correct any elements of error in the communication or correct the effect of the communication by calling attention to counteracting elements which may exist. (See Mitton v. State Bar (1969) 71 Cal.2d 525, 534 [78 Cal.Rptr. 649, 455 P.2d 753].)
The extent to which the Supreme Court of California finds this rule fundamental to the proper functioning of the attorney-client relationship and the administration of justice is illustrated by the strict manner in which the court has enforced the rule by the imposition of discipline. Two examples are illustrative in this regard.
In Abeles v. State Bar, supra, 9 Cal.3d at pp. 609-610, Abeles was publicly reprimanded for having communicated with an adverse party whom Abeles knew to have an attorney of record in pending litigation, even though the opposing party told Abeles that he was not in fact represented.
In Turner v. State Bar (1950) 36 Cal.2d 155 [222 P.2d 857], Turner was suspended from the practice of law for three months for violating the rule. Turner represented defendants in litigation in which plaintiffs were separately represented. After judgment was entered in favor of plaintiffs, an appeal was filed in which the defendants were represented by new counsel. While the matter was on appeal, Turner was requested by his former clients and their new attorney to finalize settlement terms that had been worked out between the parties themselves. Turner did so without the involvement of opposing counsel. The Supreme Court of California found that Turner had acted as more than a "scrivener" in finalizing the settlement terms and therefore violated the rule by becoming substantively involved with plaintiffs without the knowledge of plaintiffs' counsel. The fact that Turner was no longer attorney of record for defendants in any proceeding was irrelevant. As long as Turner was an attorney for defendants, knew adversity existed between the defendants and plaintiffs, and knew plaintiffs were represented by counsel, his communications with plaintiffs without their counsel present were improper.
The above authorities leave no doubt that an attorney cannot communicate upon the merits of a dispute directly with an opposing party known to be represented by counsel. However, in addition to prohibiting direct communication, rule 2-100 also prohibits indirect communication between an attorney and an opposing party represented by counsel. It is the prohibition against indirect communication that is invoked whenever clients seek counsel from their attorneys regarding communication the clients intend to have with opposing parties. Counselling clients regarding such communication can violate rule 2-100.
One course of action for an attorney whose client wishes to communicate with a represented opposing party is for the attorney to attempt to dissuade the client from such and, to the extent it occurs, assure that the attorney is not involved in and provides no guidance to the client in preparing for the communication. This was the course of action that was recommended in American Bar Association Formal Opinion No. 75 (1932) and American Bar Association Informal Opinion No. 524 (1962). These old opinions were, however, withdrawn when the American Bar Association adopted Rule 4.2 of the American Bar Association, Model Rules of Professional Conduct. It is now recognized that attorneys need not discourage clients from direct communication with one another and that such communication can be beneficial. (See, e.g., Discussion to rule 2-100 ["Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation . . . ."]; Formal Opinion No. 1991-2 of the Bar Association of the City of New York Committee on Professional and Judicial Ethics (April 30, 1991) [lawyers are not obligated to discourage direct client-initiated communication between represented parties].)2 In fact, by discouraging direct communication between the parties themselves, an attorney may be failing to act competently by foreclosing opportunities to efficiently settle or resolve the dispute.
Obviously, there is a line to be drawn between these two extremes, i.e., the attorney directly communicating with an adverse party represented by counsel on the one hand, and the attorney refusing to be involved at all in any communication his or her client has with an opposing party represented by counsel. Where this line is drawn is more easily determined in some cases than others.
For example, any direct communication on the merits of a dispute in writing, by telephone, face-to-face or otherwise between an attorney and an opposing party known by the attorney to be represented by counsel is prohibited unless opposing counsel consents. Direct communication is not prohibited, however, between attorneys and opposing parties known to be unrepresented by counsel. Whether an opposing party is known to be represented by counsel is determined by what a reasonable attorney should have known rather than what the attorney actually knows. A party is known to be represented if the party has an attorney of record even if the party insists that he or she is unrepresented. (See, e.g., Abeles v. State Bar, supra, 9 Cal.3d at pp. 606-607, 610.)
To be prohibited, communication must be upon the "subject of the representation." Although any communication with an opposing party represented by counsel should be limited3, the rule prohibits only that communication which involves the merits of a dispute.
The parties have the right to communicate with each other without their counsel present. Information obtained by a client from an opposing party represented by counsel where there has been no prohibited direct or indirect communication under rule 2-100 may properly be communicated by the client to the attorney and used by the attorney as is otherwise appropriate.
What the rule prohibits and permits is less clear in those situations where the client consults the attorney in anticipation of the client's future communication with a represented opposing party. In determining what is appropriate in such circumstances, counsel should be guided by the overriding purpose of rule 2-100, which is to prohibit one side to a dispute from obtaining an unfair advantage over the other side as a result of having ex-parte access to a represented party.
When the content of the communication to be had with the opposing party originates with or is directed by the attorney, it is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence, or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney. An attorney is also prohibited from sending the opposing party materials and simultaneously sending copies to the party's counsel. Providing copies to opposing counsel does not diminish the prohibited nature of the communications with the opposing party.
An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party words or thoughts originating with the attorney.
When the content of the communication to be had with the opposing party originates with and is directed by the client, it is permitted by rule 2-100. Thus, an attorney may confer with the client as to the strategy to be pursued in, the goals to be achieved by, and the general nature of the communication the client intends to initiate with the opposing party as long as the communication itself originates with and is directed by the client and not the attorney.
Rule 2-100 specifically contemplates that communication between an attorney and an opposing party represented by counsel is appropriate with the consent of the opposing counsel. Therefore, prudent attorneys concerned about anticipated communication between parties on disputed issues should attempt to reach an understanding with opposing counsel as to the standards that will apply to counsel's involvement in such communication.
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 responsibilities, or any member of the State Bar.
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 matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
| . |