|Oregon State Bar Bulletin APRIL 2011|
You have been trying to negotiate a settlement with opposing counsel via e-mail. In order to keep your client apprised of the negotiations, you have been copying your client on the e-mails you send. Likewise, opposing counsel has copied his client on the e-mails he sends to you. In your last response, you accidentally hit “Reply to All,” thereby sending your response both to opposing counsel and to his client. Have you just had an improper contact with a represented person?
Sadly, yes. Oregon RPC 4.2 prohibits a lawyer from communicating with a person whom the lawyer knows is represented by counsel on the subject of the representation. The primary purpose of the rule is to protect represented persons “against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.” ABA Model Rules of Professional Conduct, Rule 4.2, Comment (1). Courts have interpreted the rule broadly, finding a violation even where the lawyer is ignorant of the prohibition (In re Venn, 235 Or 73 (1963)), or acts negligently (In re McCaffrey, 275 Or 23 (1976)), or impulsively (In re Lewelling, 296 Or 702 (1984)), or where the communication was brief or not likely to cause serious harm (In re Hedrick, 312 Or 442 (1991)).
Because RPC 4.2 is interpreted broadly and strictly to effect its purpose, it can pose an ethical trap for lawyers who do not fully understand its meaning or reach.
To Whom Does it Apply?
You are a lawyer on inactive status and have filed a lawsuit pro se against a company. The company retains a lawyer who files a response to your complaint. May you call the president of the company directly to try to settle the suit?
No. Inactive lawyers representing their own interests are subject to the rule prohibiting communications with a represented party. See, e.g., In re Smith, 318 Or 47 (1993). This is true despite the fact that parties to proceedings generally may communicate directly with one another. See OSB Formal Op No 2005-6. Further, it does not matter that the lawyer and represented party share a relationship that requires them to interact outside of the context of the litigation. See In re Otto W. Heider, 217 Or 134, 155 (1959)(rejecting lawyer’s defense that communication allowed because accused and represented party had business relationship).
On the other hand, where a lawyer is neither representing her own interests, nor those of a client, RPC 4.2 does not restrict the lawyer’s communications with represented persons. For example, governmental entities sometimes hire lawyers in positions that, because of the nature of the job duties, do not require a license to practice law. Investigators and compliance officers are typical examples. Because they do not engage in the actual practice of law, the lawyers in such positions are not acting as the legal representative for the entity nor acting in their own interests. In In re Mettler, 305 Or 12 (1988), the court held that a lawyer who worked as a securities examiner for the state did not violate former DR 7-104 by negotiating a settlement directly with a represented securities dealer because there was no attorney-client relationship between the lawyer and the state and he was not acting for his own benefit.
“The Subject of the Representation”
You represent plaintiff in a civil suit alleging that your client overpaid in purchasing the assets of the defendant, because the defendant’s bookkeeper overstated the value of the inventory to cover up his embezzlement. Although the bookkeeper is neither a party to, nor represented in the civil case, the bookkeeper is being represented by a lawyer in criminal proceedings relating to the embezzlement. May you notice and take the deposition of the bookkeeper without notice to or consent of his criminal defense lawyer?
No. Oregon RPC 4.2 prohibits communicating with a represented person on the subject of the representation. Although “subject” is not defined in the rules of professional conduct, its meaning is broader than simply the specific legal matter on which a lawyer is representing a client. In re Newell, 348 Or 396, 407 (2010). The question for purposes of RPC 4.2 is whether the lawyer’s representation involves a common factual subject. Id at 409 (“Factually, each lawyer’s representation involved a common subject — whether [the defendant’s] books were overstated.”). See also, In re Burrows, 291 Or 135 (1981)(former DR 7-104 prohibited district attorney from arranging the defendant’s participation as an undercover drug informant when the district attorney knew that defendant was represented on pending rape and robbery charges).
Lawyers who practice in multiple jurisdictions need to be particularly mindful of the distinction between the term subject and the term matter as it relates to RPC 4.2. While every jurisdiction has adopted some version of a rule modeled on ABA Model Rule 4.2, they are not uniform. In contrast to Oregon RPC 4.2, the ABA Model Rule prohibits a lawyer from communicating with a “person the lawyer knows to be represented by another lawyer in the matter.”
Authorized by Law?
You have filed a lawsuit against the defendant, whom you know to be represented by counsel. You have asked the defendant’s lawyer if she will accept service on behalf of her client, but she has not responded. May you serve defendant directly?
Yes. Perhaps the most important exception to RPC 4.2 is for communications that are “authorized by law or by court order.” RPC 4.2(b). A classic example of when a communication may be “authorized by law” is when it involves service of process. In re Carroll, 15 DB Rptr 48 (2001)(serving show cause pleadings directly on the opposing party without the consent of the party’s lawyer was not a violation of former DR 7-104).
Authorized by law is generally interpreted to mean expressly permitted or required by statute or other regulation. The exception is narrowly construed and does not extend to every contact that is not expressly prohibited. For example, in In re Schenck, 320 Or 94 (1994), the lawyer was disciplined for mailing a request for production immediately after service of complaint on a person known to be represented by counsel. Although the rules of civil procedure allow a request for production to be served with the summons and complaint, separate mailing to the represented party was an improper communication. Similarly, in Newell, supra, while the court agreed that discovery rules authorize a lawyer to question a represented party directly, “the ‘authorized by law’ exception does not extend so far that it permits one lawyer to unilaterally exclude a represented witness’s lawyer from the deposition.” 348 Or at 413. Thus, the represented party’s lawyer must be notified of the deposition and given the opportunity to attend.
When Do You Know a Person is Represented?
You represent the husband in a post-dissolution proceeding you filed against the wife just two months after the final judgment was entered. The wife was represented in the dissolution, and her lawyer has not submitted a notice of withdrawal to the court. You have served the wife with the pleadings and would like to contact her directly about the matter. May you do so without getting consent from her divorce lawyer?
Not necessarily. Oregon RPC 4.2 by its terms only applies when the lawyer knows that the person is represented. Knows is defined under Oregon RPC 1.0(h) to denote actual knowledge of the fact in question. However, knowledge may be inferred from the circumstances. Moreover, the conclusion of a matter, or one aspect of a matter, does not mean that the opposing party is no longer represented on the subject of the concluded matter. RPC 1.0(h). Therefore, if there is substantial reason to believe that the person is still represented, a lawyer should not try to evade the requirement of obtaining consent of counsel by closing his eyes to the obvious. See In re Schwabe, 242 Or 169 (1965)(lawyer was reprimanded when, doubting the assertion by opposing counsel that adverse party was represented, he contacted the adverse party directly). On the other hand, knowledge that a person will use a lawyer or that the person generally uses a particular lawyer for its legal work is not sufficient to trigger the application of the rule. This is true even for corporations and government entities that have in-house counsel.
What if the Represented “Person”
Is an Entity
You are representing an employee in a discrimination lawsuit against its former employer, Company. Company has retained outside counsel to represent it in the lawsuit. You want to interview a former employee who has witnessed discriminatory practices by Company. May you do so without notifying or getting the consent of Company’s lawyer?
Yes. OSB Formal Ethics Op No 2005-80 addresses the question of when a current or former employee of a corporation should be deemed to be represented for purposes of RPC 4.2. With respect to former employees, the answer is simple: they are not deemed to be represented by the corporation’s lawyer. Therefore, a lawyer need not obtain permission from a corporation’s counsel to speak with former employees unless the lawyer has actual knowledge that the corporation’s counsel represents the former employees. The opinion cautions, however, that lawyers should not ask questions of former employees that seek to invade the entity’s privileged communications. See RPC 4.4(a).
When dealing with current employees the answer is not quite so simple, particularly in the absence of any express authority in Oregon.1 The opinion offers the following approach, based in large part on a review of authority from other jurisdictions: A current employee is deemed to be represented by the corporation’s lawyer, and therefore may not be contacted, if 1) the conduct of the current employee is at issue in the matter or 2) the current employee is part of corporate management. Whether an employee is part of management may not always be clear. The ABA Model Rule 4.2, comment (7) provides the following guidance: “In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter….” Certainly, corporate officers and board members would fall within the corporate management sphere based on that comment. Not every employee with the title of manager necessarily would, especially employees who manage people rather than policy. Where a person’s role in the entity is not clear, lawyers should proceed with caution.
ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at firstname.lastname@example.org.
© 2011 Helen Hierschbiel