drop the phone & drive: limits on lawyer communications with non-lawyers featuring armstrong...

© 2014 Armstrong Teasdale

LLP


LLP


LLP

Drop the Phone and Drive:Limits on Lawyer Communications with Non-

Lawyers

Michael Downey

November 12, 2014


LLP

Anti-Contact Issues

Can you speak to another lawyer’s client?

Can another lawyer speak to your client without your

participation?

2


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The Accident #1

3

W1

Joe

W2W3

Joe's Trucking

Plaintiff


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Tom Cruise visits Oprah Show

4


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"Represented Persons" – Rule 4-4.2

"In representing a client, a lawyer shall not

communicate about the subject of the representation

with a person 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 to do

so by law or a court order."

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Elements of Anti-Contact Rule

In representing a client

A lawyer shall not communicate

About the subject of the representation

With a person the lawyer knows to be represented by

another lawyer in the matter

Unless

• Lawyer has the consent of the other lawyer or

• Authorized by law or a court order.

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The Accident #1

7

W1

Joe

W2W3

Joe's Trucking

Plaintiff


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Unrepresented Persons (Witnesses) – Rule

4-4.3

No (falsely) implying disinterested.

• In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.

Must clarify role when misunderstood.

• When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

No giving legal advice if conflicting interests.

• The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

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LLP

Duty of Candor – Rule 4-4.1

In the course of representing a client a lawyer shall

not knowingly:

a) make a false statement of material fact or law to

a third person; or

b) fail to disclose a material fact to a third person when

disclosure is necessary to avoid assisting a criminal

or fraudulent act by a client, unless disclosure is

prohibited by Rule 1.6.

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LLP

No Fraud or Misrepresentations –

Rule 4-8.4(c)

It is professional misconduct for a lawyer to:

a) violate or attempt to violate the Rules of Professional

Conduct, knowingly assist or induce another to do

so, or do so through the acts of another;

b) commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a

lawyer in other respects;

c) engage in conduct involving dishonesty, fraud,

deceit or misrepresentation; . . . .

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The Accident #2 – Corporate Context

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W1

TD

W2W3

Nationwide Trucking Co.

NTCDriver

Plaintiff


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Corporate Employees (Constituents)

[7] 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 or has authority to obligate the

organization with respect to the matter or whose act

or omission in connection with the matter may be

imputed to the organization for purposes of civil or

criminal liability.

Model Rule 4-4.2 cmt.

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Contacts with NTC Driver?

If the organization is represented, then anti-contact

rule covers

• Constituent of the organization "who supervises,

directs, or regularly consults with the organization's

lawyer concerning the matter"

• Constituent who have "authority to obligate the

organization with respect to the matter"

• Constituent "whose act or omission in connection

with the matter may be imputed to the organization

for purposes of civil or criminal liability

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The Accident #2 – Corporate Context

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W1

TD

W2W3


NTCDriver

Plaintiff


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The Accident #3 – NTC Witnesses

15

NTC CEO

TD

NTC EE

W3


NTCDriver

Plaintiff


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Contacts with NTC Driver?

If the organization is represented, then anti-contact

rule covers

• Constituent of the organization "who supervises,

directs, or regularly consults with the organization's

lawyer concerning the matter"

• Constituent who have "authority to obligate the

organization with respect to the matter"

• Constituent "whose act or omission in connection

with the matter may be imputed to the organization

for purposes of civil or criminal liability

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The Accident #2 – NTC Witnesses

17

NTC CEO

TD

NTC EE

W3


NTCDriver

Plaintiff


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But Beware . . .

"[7] In communicating with a current or former

constituent of an organization, a lawyer must not use

methods of obtaining evidence that violate the legal

rights of the organization. See Rule 4-4.4."

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The Accident #2 – Former

Constituent

19

W1

TD

W2W3


Ex-NTC

Driver

Plaintiff


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No Coverage for Former

Constituents

"[7] . . . Consent of the organization's lawyer is not

required for communication with a former

constituent. . . . In communicating with a . . .

constituent of an organization, a lawyer must not use

methods of obtaining evidence that violate the legal

rights of the organization. See Rule 4-4.4 "

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The Accident #2 – Constituent with

Separate Counsel

21

W1

TD

W2W3


NTCDriver

Plaintiff


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Separate Counsel

"If a constituent of the organization is represented in

the matter by his or her own counsel, the consent by

that counsel to a communication will be sufficient for

purposes of this Rule. Compare Rule 4-3.4(f)."

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Points to Emphasize

Protection only about matter of representation

Anti-Contact Rule does not turn on

• Method of communication

− Prevents communication in person, by email,

telephone, etc.

• Who initiates communication

− "Plaintiff called me" is not an excuse

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LLP

Client May Speak to Covered Person

"Parties to a matter may communicate directly with

each other, and a lawyer is not prohibited from

advising a client concerning a communication that

the client is legally entitled to make." Rule 4-4.2 cmt

[4]

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Communication with In-House

Counsel

ABA Formal Opinion 06-443 indicates such

communications are permitted

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The “Final Exam”

You are corporate counsel for Better Technologies

Company (BTC)

BTC is negotiating new contracts with Supplier

At the first meeting, BTC has the following persons on its

team:

1) BTC attorney

2) BTC executive, a law school graduate no longer licensed

3) BTC executive, who has never been to law school but is

quite “clever”

Supplier’s team consists of Supplier’s non-lawyer COO,

Supplier’s sales manager, and Supplier’s attorney

Who can contact whom directly after the meeting?26


LLP

Thank You

Michael Downey

Armstrong Teasdale LLP

314.342.8072 direct

[email protected]

Or www.MissouriEthicsLawyer.com

Webinar CLE Code: MD1112

27

mailto:[email protected]

http://www.missouriethicslawyer.com/

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