January 2008

Practice Tips from Bar Counsel: RPC 4.2 (Communication with Represented Person)

If They’ve Got a Lawyer, They’re Off-Limits.

By Phil Pattee, Assistant Bar Counsel

Imagine for a moment that you’re a plaintiff’s attorney.  You’re staring at a file that just won’t resolve.  It’s a personal injury case, and you believe it should have settled by now.  After all, you only asked for policy limits.  How could you be more reasonable?

Then you think about the opposing counsel and fume.  It’s him, you believe, who’s causing the problem.  In fact, you’re convinced that the other lawyer hasn’t told his client about your policy-limits offer.

Then you get an idea.  You’ll write a threatening letter to opposing counsel which again explains why policy limits should be tendered.  And, you’ll toss in the part about the insured’s exposure to millions of dollars in excess liability if a settlement isn’t reached.

Then, and here’s the best part, you’ll “cc” the defendant directly.  That way the defendant will know about the policy-limits offer.  That way defendant will know about his potential exposure.  That way the defendant will pressure his attorney and the insurance company to cough up the cash.

To a certain extent, the above scenario probably would have an impact.  The defendant will panic and scream at his attorney.  Then the enraged attorney will contact the State Bar to file a disciplinary grievance.  And he’ll be correct to do so.

Rule of Professional Conduct 4.2 (Communication With Person Represented by Counsel), states that a lawyer “shall not communicate about the subject of the representation with a person that 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 for a court order.”

Translation:  Don’t communicate with opposing parties who are represented by counsel. 

RPC 4.2 is designed to protect parties from overreaching by opposing attorneys.  It also protects against clients revealing confidential information that their attorneys legitimately won’t give to the other side.

Underlying RPC 4.2 is a belief that legally unsophisticated parties need protection from Svengali-like1 attorneys who, using our magic powers, can manipulate others at will.  And because this rule protects the attorney-client relationship, the client cannot waive it.2

Ethical rules, however, do not prohibit the parties from communicating with each other.  We’ve all had clients who, despite our best efforts and instructions to the contrary, still contact the opposing party.  They just can’t help themselves.

Although the parties can communicate, the attorney cannot “mastermind” such contact.  RPC 8.4 (Misconduct) prohibits an attorney from violating or attempting to violate ethical rules, knowingly assisting or inducing another to do so, or doing so “though the acts of another.”

In other words, if you can’t do it, you can’t get someone else to do it.  This is the same concept that prohibits attorneys from using “cappers” to chase ambulances or hang around emergency rooms.3

The prohibition against attorneys communicating with a represented person even applies when the lawyer appears pro se.  The Nevada Supreme Court has ruled that the average layperson, and the integrity of the attorney-client relationship, do not receive less protection merely because the opposing attorney represents himself or herself.4

So, the message is clear.  No communicating with an opposing party unless, of course, opposing counsel gives his or her permission.  Yeah, like that’s going to happen.

FOOTNOTES

1 Svengali, a reference to the evil hypnotist in Trilby, George du Maurier’s novel published in 1894, describes a person who, with evil intent, manipulates or dominates other people.

2 ABA Formal Ethics Op. 95-396 (1995).

³ RPC 7.3 (Communication With Prospective Clients).

⁴ In re Schaefer, 117 Nev. 496, 25 P.3d 191 (2001).