Ethics Advisory Opinion No. 13-01


UTAH STATE BAR

ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 13-01

Issued April 9, 2013

ISSUE

When a lawsuit or claim is filed against a government entity, the attorney’s office of that entity sends all relevant employees an e-mail including a litigation hold notice and certain questions regarding the location of documents possibly relevant to the pending claim.  If the claim has been brought by an employee, such as an employment discrimination claim, the complaining employee would also receive the e-mail.  In this situation, does the attorney’s office sending this e-mail to all relevant employees, including a represented plaintiff or complaining employee, constitute a violation of Utah Rule of Professional Conduct 4.2?
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Ethics Advisory Opinion No. 07-02

(Approved February 25, 1993)
Issue:
May an attorney give a “second opinion” on a legal matter, when approached by a non-client who is represented by counsel?

Opinion: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, “[i]n representing a client,” from “communicat[ing] about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter.” A lawyer does not violate the letter or purposes of this rule by rendering a second opinion on a legal matter, when the lawyer is not “representing a client” on the same subject. However, the lawyer should make every effort neither to impair the first attorney-client relationship nor to use the consultation as a means of soliciting the represented party.
Rationale: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, in representing a client, from communicating with a party the lawyer knows is 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.” The main thrust of this rule is “to prevent situations in which a represented party may be taken advantage of by adverse counsel; . . .”1 Of course, an attorney cannot give advice to an unrepresented person with the exception of suggesting that he or she seek counsel.2
A lawyer does not violate the letter or purposes of Rule 4.2 by rendering a second opinion to a represented party, when the lawyer is not “representing a client” in the same matter. Under its express terms, Rule 4.2 applies only to situations in which the lawyer is “representing a client” in making the communications. Moreover, the situation is not one “in which [the] represented party may be taken advantage of by adverse counsel; . . .”3 The Ethics Advisory Opinion Committee is, therefore, of the view that an attorney does not violate the Rules of Professional Conduct by rendering a second opinion, when the lawyer is not representing a client in the same matter.
This conclusion is supported by In re Mettler,4 where the Supreme Court of Oregon addressed the scope of DR7-104(A)(1), the predecessor to Rule 4.2. DR7-104(A) provided:
During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation . . . with a person he knows to be represented by a lawyer on that subject . . . .
The court concluded that the phrase “during the course of his representation of a client” acts “as a threshold requirement for unethical conduct” and that a lawyer, therefore, cannot violate the rule unless he or she communicates with a represented person in the course of representing a client.5
This conclusion is also consistent with the ethics advisory opinions of other jurisdictions. In 1987, Kentucky considered the issue and concluded that a lawyer may provide legal advice to a person who is represented by counsel and is seeking a second opinion. The opinion cautioned, however, that the lawyer must make every effort neither to impair the first relationship nor to use the consultation as a means of soliciting the client. The opinion also suggested that the lawyer should obtain the party’s consent to consult the first lawyer so that all significant facts can be taken into account in rendering the second opinion.6 In Philadelphia, a lawyer who is approached by a represented party may ask the party to review how his or her present lawyer is handling the case. However, the opinion advises lawyers to be prudent in questioning the represented parties and to exercise discretion in evaluating the work of other lawyers.7
The prudential concerns noted in these opinions, while not expressly addressed in the Rules of Professional Conduct, are consistent with the spirit of the rules as well as the candor, discretion, and fair dealing that should characterize the legal profession. As second opinions become more acceptable, a policy of disclosure to the first attorney could prevent undue influence or overreaching by the attorney rendering the second opinion. Further, an attorney may be able to give a better evaluation if he or she communicates with the first attorney as well as with the client. The purposes of Rule 4.2, however, are not served by restricting an individual’s ability to discuss his or her case with an attorney who is not connected with the matter.
Footnotes
1. Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P.2d 564, 567 (1984) (en banc) (construing Code of Professional Responsibility DR7-104(A)(1)).
2. Rules of Professional Conduct 4.3(a).
3. 691 P.2d at 567.
4. 305 Or. 12, 748 P.2d 1010 (1988).
5. Id. at 1011-12.
6. Kentucky Ethics Opinion No. 325 (1987).
7. Philadelphia, Pa., Bar Ethics Opinion No. 86-137.

04-04 – In litigation to enforce an oral contract allegedly made by a corporate defendant’s former employee

August 25, 2004

1 Issue: In litigation to enforce an oral contract allegedly made by a corporate defendant’s former employee on behalf of the corporation, where the former employee was not a member of the control group, may the plaintiff’s attorney contact the ex-employee without the consent of the corporate defendant’s attorney?

2 Answer: The contact with the former employee is not unethical. Utah Rules of Professional Conduct 4.2 (2004) does not bar a lawyer’s unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances not applicable to this opinion.
3 Facts: A corporate defendant is represented by a lawyer in the defense of a claim based on an oral agreement allegedly made by a former employee of the corporate defendant while employed by the corporate defendant. The former employee was not a member of the “control group” as this term is defined in Utah Rules of Professional Conduct 4.2(c) (2) (2004), but the former employee did have authority to enter into contracts. The former employee is not separately represented by legal counsel with respect to the matter. We are asked whether the lawyer representing the corporate defendant represents the former employee with respect to the matter under Rule 4.2(c)(1)(B)(iii), thereby precluding plaintiff’s counsel from communicating with the former employee with respect to the matter without complying with Rule 4.2(a).
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Ethics Advisory Opinion No. 04-06

December 2, 2004
Issue:
Under what circumstances is it permissible for corporate counsel to assert that counsel concurrently represents present and former corporate employees whose testimony is relevant to a claim and ethically preclude opposing counsel’s access to those corporate employee witnesses?

Opinion: If corporate counsel has actually formed an attorney-client relationship with these employee-witnesses, and has fully complied with Utah Rules of Professional Conduct 1.7 (including obtaining informed consent from all multiple clients to joint representation and informing them of the possible need for withdrawal from representing any of them should an actual conflict arise), this is permissible and opposing counsel may not interview them. However, in the absence of such a fully formed and proper attorney-client relationship, it is improper for corporate counsel to block opposing counsel’s access to other current corporate constituents, by asserting an attorney-client relationship unless these individuals were control group members, their acts could be imputed to the organization or their statement would bind the corporation with respect to the matter under Utah Rules of Professional Conduct 4.2. Similarly, it is improper to block opposing counsel’s access to any former employee in the absence of a current fully formed and proper attorney-client relationship.
Facts: The tort action asserts one corporate employee and an outside individual were negligent, but names only the corporate entity (and the outside individual) as defendants. Counsel for plaintiff seeks to interview other employees who are fact witnesses and who are not alleged to be negligent. Corporate counsel informs plaintiff’s counsel that s/he is representing all corporate employees (current as well as former employees) and thus plaintiff’s counsel may not informally interview any of these individuals without violating Rule 4.2.
Analysis: Whether corporate counsel’s actions are proper must be determined by reference
to Rule 1.7 regarding conflicts of interest, Rule 4.2 as it governs counsel’s ability to interview “represented persons” in the corporate context, and Rule 3.4 as it permits corporate counsel to request that corporate employees not talk with opposing counsel.
Rule 4.2 1 provides in relevant part:
(a) General Rule. A lawyer who is representing a client in a matter 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 [other law or judicial order].
Utah’s Rule 4.2 2 expressly addresses “Organizations as Represented Persons” and defines when an individual constituent of that organization, not separately represented, should be considered to be “represented” by corporate counsel. With respect to non-governmental organizations, Rule 4.2 states:
(c)(1)(B) When the represented “person” is an organization, an individual is “represented” by counsel for the organization if the individual is not separately represented . . . and . . . is known by the lawyer to be
(c)(1)(B)(i) a current member of the control group of the represented organization; or
(c)(1)(B)(ii) a representative of the organization whose acts or omissions in the matter may be imputed to the organization under applicable law; or
(c)(1)(B)(iii) a representative of the organization whose statements under applicable rules of evidence would have the effect of binding the organization with respect to proof of the matter.
Accordingly, whether or not the corporate attorney had formed an individualized attorney-client relationship with a particular corporate employee, this rule would prohibit the opposing counsel from interviewing any current member of the “control group” or any current employee whose acts or omissions would be imputed to the corporation or whose statements would be imputed to the corporation. Under these circumstances the employee would be acting and speaking for the corporation.3
Here, however, the opposing attorney posits that the employee is NOT a “person” “represented” by corporate counsel due to any of these factors, but a mere fact witness whom corporate counsel has (inexplicably in opposing counsel’s view) undertaken to represent as well.
Utah Rules of Professional Conduct 3.4, “Fairness to opposing party and counsel” must also be consulted. This rule is designed to permit both counsel to have access to relevant evidence in order that the adversary system function appropriately. Under Rule 3.4(f), a lawyer ordinarily may not ask a person who is not the lawyer’s client “to refrain from voluntarily giving relevant information to another party” with one exception relevant here. There is an exception to this prohibition if “[t]he person is . . . an employee or other agent of a client; and (2) [t]he lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”4 Thus, in accordance with this rule, corporate counsel may request any current employee (including fact witnesses) whose interests will not be adversely affected to refrain from informally speaking with opposing counsel. However, corporate counsel may not direct opposing counsel not to contact corporate employees who have the right to talk or to decline to talk to opposing counsel, unless, of course, these corporate employees are actually individually represented by corporate counsel.
The situation posits corporate counsel taking one further step, making all employees who have any information about the issue individual clients, and thus conclusively preventing opposing counsel from informally contacting any of them. The first question in analyzing whether this strategy is ethical is whether these employee-fact-witnesses have actually formed an individual attorney-client relationship with corporate counsel. If they have not, corporate counsel would be guilty of violating Rule 3.4 in unlawfully obstructing access to these witnesses and Rule 4.1 in making a false statement of material fact.5
It is permissible for corporate counsel to undertake to represent an employee opposing counsel believes is a mere fact witness provided there is no actual conflict of interest (Rule 1.7(a)) between the corporation and the employee-witness with respect to the matter and provided corporate counsel fully complies with Rule 1.7(b) regarding potential conflicts of interest. Such compliance would require that all clients (the corporation and each employee-witness) be fully informed as to the implications of common representation, and give consent to common representation after such advice. The advice should include the possibility that if a conflict of interest arises between the corporation and the witness, counsel may be required to withdraw from the representation entirely.6
It may be helpful to illustrate a possible scenario where common representation might be undertaken and a scenario where it should not be. Imagine allegations that the corporation has been negligent due to the acts of one employee, and the named employee, the corporation and all other employee witnesses tell counsel that the alleged negligent act never occurred. Under these circumstances, counsel should be able to obtain informed consent to represent the corporation, the alleged negligent employee and other employee witnesses, should they all desire representation. However, if one employee witness will testify that the negligent act occurred and the employee alleged to be negligent denies the act; then clearly corporate counsel cannot represent both (and might be required to withdraw from the representation entirely if this came to light after common representation had been undertaken).
We also interpret Rule 1.7 to be consistent with Rule 3.4. If an employee’s interest might be adversely affected by refraining from giving information to opposing counsel under Rule 3.4, then a conflict of interest exists such that common representation should not be permitted under Rule 1.7. For example, if the corporate employee had suffered the same discrimination as that complained of in the claim against the corporation, it would be impermissible for corporate counsel to undertake to represent this employee fact witness in the case.
While corporate counsel may certainly consult with the corporate constituent called as a witness in a deposition, this consultation is part of counsel’s representation of the corporation and does not render the attorney counsel to the witness as an individual. Nor does such corporate representation block opposing counsel’s ability to attempt to interview such a fact witness separate and apart from formal discovery.
Finally, we note that, in prohibiting communications with persons represented by counsel, Utah’s Rule 4.2(a) provides explicit exceptions: “the lawyer . . . is authorized to do so by: . . . (2) decision . . . of a court of competent jurisdiction; (3) a prior written authorization by a court of competent jurisdiction obtained by the lawyer in good faith. . . .” Accordingly, an attorney who seeks to informally interview employees who are mere fact witnesses has the possibility of having this issue resolved by the court.7
Footnote
1. This portion of Utah Rules of Professional Conduct 4.2 (2004) is identical to ABA Model Rule 4.2 (1993). This Committee has previously opined regarding when Rule 4.2 prohibits or permits contact with various persons in Utah Ethics Advisory Op. No. 04-04, 2004 WL 1921150 (Utah St. Bar) (contact with former employees of opposing party permitted), Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar) (contact with insurance adjuster), Utah Ethics Advisory Op. No. 96-01, 1996 WL 227376 (Utah St. Bar) (contact with former plaintiffs whose claims have been settled), Utah Ethics Advisory Op. No. 95-05, 1996 WL 73351 (Utah St. Bar) (relationship to U.S. Department of Justice regulation purporting to authorize certain ex parte contacts), and Utah Ethics Advisory Op. No. 113 (1991), 1991 WL 634794 (Utah St. Bar) (counsel for individual members of tribe communicating with Tribal Counsel). None of these opinions is determinative in this case.
2. The ABA Model Rules include these concepts in the Comment to Rule 4.2, as did Utah before the current version was adopted in 1999. See Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001) interpreting Utah’s prior Rule 4.2 to prohibit contacts with the corporation’s secretary given this language in the Comment to the rule.
3. This interpretation of prior Utah Rule 4.2, which included these provisions in the Comment rather than in the text of the rule itself, was adopted by the Utah Supreme Court in Featherstone v. Schearrer, 34 P.3d 194, 201 (Utah 2001).
4. Utah Rules of Professional Conduct 3.4(f)(1),(2)(2004).
5. Utah Rules of Professional Conduct 4.1(a)(2004) provides: “In the course of representing a client a lawyer shall not knowingly: (a) [m]ake a false statement of material fact or law to a third person.”
6. See Utah Rules of Professional Conduct 1.9 and Utah Ethics Advisory Op. No. 96-11, 1996 WL 45138 (Utah St. Bar) (attorney appointed to represent both mother and father in an abuse/neglect proceeding must withdraw from representing either of them after a conflict of interest arises).
7. See e.g., Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (brokerage firm sought and obtained court’s permission to conduct ex parte interviews with former bank employees where bank was represented by counsel).

Ethics Advisory Opinion No. 00-05

(Approved December 1, 2000)
¶ 1 Issue:
Where a defendant is being represented by a lawyer appointed by defendant’s insurance carrier prior to the entry of any judgment against the defendant, would it be ethical for plaintiff’s lawyer to convey a settlement offer proposing that plaintiff take an assignment of any bad-faith claim that the defendant might have against the insurance carrier in exchange for plaintiff’s agreement not to execute against defendant for amounts exceeding the insurance policy limits?

¶ 2 Opinion: It is ethical for plaintiff’s lawyer to communicate this offer of settlement to the defendant so long as the communication complies with Utah Rules of Professional Conduct 4.1 and 4.2. If the offer of settlement creates a conflict of interest for the defendant’s insurance carrier-appointed lawyer, then the defendant’s lawyer must fully comply with Rule 1.7. Counsel’s presentation of plaintiff’s settlement offer to advance plaintiff’s interests is not unethical, even though it may place defendant’s counsel in a conflict of interest.
¶ 3 Facts: In a lawsuit brought against Defendant by Plaintiff, Defendant is being represented by a lawyer appointed by Defendant’s insurance carrier. There is the potential for a judgment against Defendant for an amount greater than the limits of the insurance policy. Prior to the entry of judgment (or even prior to the filing of a complaint), Plaintiff, through her lawyer, wishes to make a settlement offer to Defendant under which Plaintiff would accept an assignment of any bad-faith claims1Defendant might have against his insurance carrier in exchange for Plaintiff’s agreement not to execute on any judgment against Defendant to the extent that a judgment would exceed the limits of the applicable insurance policy.
¶ 4 The request to the Committee questions whether Plaintiff’s counsel’s conveying such an offer of settlement has ethical ramifications if it creates a relationship between Plaintiff’s lawyer and an adverse party that results in a conflict of interest for Defendant’s counsel. The Committee has been asked to consider the request under two assumptions: that the offer is conveyed (a) by a letter addressed to Defendant, in care of Defendant’s counsel, and (b) by a letter addressed to Defendant, in care of the insurance adjuster for Defendant’s insurance carrier.2
¶ 5 Discussion: The Committee has previously issued an opinion that provides guidance on this issue. In Opinion No. 98-05,3the Committee was asked if it was unethical for a defense lawyer to offer a “full satisfaction” settlement, conditioned upon a plaintiff’s waiving a claim for attorneys’ fees against defendant. The request suggested that these offers of settlement were unethical because they created a conflict of interest for plaintiff’s counsel under Utah Rules of Professional Conduct 1.7(b), as plaintiff’s counsel’s interest in her fees might cloud her judgment as to the merits of the settlement. Opinion 98-05 states that defendant’s counsel does not act unethically in making an offer of settlement that may create a conflict of interest for plaintiff’s counsel. Defendant’s counsel in that case has a duty to represent the interests of his client zealously within the limits of law. It is the duty of plaintiff’s counsel to convey the settlement proposal to her client, to resolve any conflicts of interest arising under Rule 1.7(b), and to respond to the settlement proposal as dictated by her client.
¶ 6 The current request is governed by the same principles. We first observe that it is not for us to decide whether the proposed prejudgment assignment of bad-faith claims in exchange for a covenant not to execute for amounts exceeding insurance policy limits is enforceable. Whether such settlements are void as opposed to public policy or violate a provision of the insurance policy and invalidate insurance coverage are issues of law, not ethics.4If these issues arise, they must be resolved by the Utah courts.
¶ 7 So long as the offer of settlement is communicated in a manner that does not violate Rules 4.1 and 4.2, Plaintiff’s lawyer does not act unethically in making the settlement offer. As we noted in Opinion 98-05, it is Plaintiff, not Plaintiff’s counsel, who controls the settlement offer. It is Plaintiff’s lawyer’s duty to convey Plaintiff’s offers to Defendant. It is the duty of defense counsel to convey the substance of these settlement offers to Defendant5 and to accept or reject the settlement offers, as directed by Defendant.6
¶ 8 Rule 1.7(b). The settlement offer, if accepted, does not place Plaintiff’s lawyer in a conflict of interest. The assignment to Plaintiff of Defendant’s bad-faith claims against Defendant’s insurance carrier does not make Plaintiff’s lawyer the lawyer for Defendant. It does not create a relationship with an adverse party different from that created by an interim stipulation or partial settlement. It is not different from a partial settlement by the parties to resolve all property-loss claims for a stipulated amount and agreement to proceed to trial on the personal-injury claims.
¶ 9 Similarly, nothing in the proposed settlement changes the alignment or interests of Defendant. The Committee assumes that, while the settlement agreement may require Defendant’s later cooperation in Plaintiff’s prosecution of the bad-faith claims against Defendant’s insurance carrier, the settlement agreement does not provide for the cooperation or collusion of Defendant with respect to Plaintiff’s underlying claims. Defendant’s interests in the defense of the underlying claims are, therefore, no different after the assignment than if Defendant had insurance limits in excess of any exposure to liability.
¶ 10 If Defendant’s counsel represents only Defendant, the settlement offer does not appear to create any potential conflict of interest for Defendant’s counsel. The offer affords his client an opportunity to avoid any liability in excess of the insurance policy limits. This is clearly in Defendant’s interest.
¶ 11 The settlement offer may create a conflict of interest for Defendant’s counsel if he also represents the insurance carrier. In this circumstance, the lawyer’s responsibilities to the insurance carrier may limit his ability to advise and counsel Defendant with regard to the settlement offer. Defendant’s counsel may proceed with the representation only if he complies with Rule 1.7(b). However, the fact that a settlement offer may create a conflict of interest for defense counsel does not make the settlement offer inappropriate or Plaintiff’s counsel’s communication of the settlement offer unethical.
¶ 12 Rules 4.1 and 4.2. Plaintiff’s lawyer’s communication of the settlement offer must comply with Rules 4.1 and 4.2.7Rule 4.1(a) requires that Plaintiff’s counsel not “make a false statement of a material fact or law” to Defendant in the settlement offer.
¶ 13 Rule 4.2(a)8requires that the settlement offer not be communicated directly to Defendant or to Defendant’s insurance adjuster by Plaintiff’s lawyer if she knows that the recipient of the offer is represented by a lawyer in the matter, unless that lawyer consents to the communication or the communication is otherwise authorized by Rules 4.2(a)(1), (a)(2), (a)(3) or (a)(4). For purposes of this Opinion, the Committee assumes that direct communication of the written offer of settlement has not been so authorized.
¶ 14 If the written offer of settlement, regardless of whom it is written to, is contained in an envelope addressed to and delivered to Defendant, it is an ex parte communication in violation of Rule 4.2(a), even if it is also addressed to and delivered to Defendant’s counsel.9If the written offer, regardless of whom it is written to, is contained in an envelope addressed only to Defendant or to Defendant in care of his lawyer, is delivered only to Defendant’s lawyer, and Defendant’s lawyer delivers the envelope unopened to Defendant, the communication is an ex parte communication in violation of Rule 4.2(a). In such cases, Defendant’s lawyer is under no duty to open the envelope and may believe ethical or legal obligations require delivery of the envelope to Defendant unopened.
¶ 15 If the written offer, regardless whom it is written to, is contained in an envelope addressed to Defendant or to Defendant in care of Defendant’s lawyer, is delivered only to Defendant’s lawyer, and Defendant’s lawyer opens the envelope and chooses to deliver the offer to Defendant, the settlement offer is not an ex parte communication in violation of Rule 4.2(a). In these cases, Defendant’s lawyer has consented to the ex parte communication and may control the time, method and manner of communicating the offer. However, if the written offer is written to Defendant or to Defendant in care of his lawyer, and the lawyer chooses to deliver the written offer to Defendant, the content of the communication must comply with Rule 4.2(d)(1).10
¶ 16 Even if the ex parte communication is permitted by Rule 4.2(a) or (b), Rule 4.2(d)(1) prohibits the communication if it seeks to induce the person to forego representation or to disregard the advice of the person’s counsel. Therefore, if the content of the communication contains statements derisive of Defendant’s lawyer or Defendant’s lawyer’s representation of Defendant in the matter, such statements may and often will violate Rule 4.2(d)(1).
¶ 17 If the offer is written to Defendant or to Defendant in care of Defendant’s lawyer and it is contained in an envelope addressed and delivered only to Defendant’s lawyer, and Defendant’s lawyer delivers the written offer to Defendant, Defendant’s lawyer has consented to the ex parte communication and Rule 4.2(a) is not violated.11As in the prior case, the communication of the offer to Defendant is by Defendant’s lawyer, who may control the time, method and manner of communicating the offer. If Defendant’s lawyer delivers to Defendant the offer written to the Defendant or to Defendant in care of Defendant’s lawyer, the content of the communication is subject to Rule 4.2(d)(1).12
¶ 18 Communicating with the Insurance Adjuster. If the offer of settlement is written to Defendant, in care of Defendant’s insurance adjuster, and is delivered to Defendant’s insurance adjuster, the communication may violate Rule 4.2(a). In our Opinion No. 98-07,13we stated that communications by a plaintiff’s counsel directly to a defendant’s insurance adjuster are improper if plaintiff’s counsel knows or reasonably should know that the insurer is represented by counsel in the matter. The Committee stated that, when the injured party and the insurance company have been unable to achieve resolution of the claim and the matter is in or likely to proceed to litigation, the plaintiff’s lawyer reasonably should expect that the insurance company is represented by counsel in the matter.
¶ 19 Under these circumstances, direct contact with the insurance adjuster would be improper unless plaintiff’s lawyer has affirmatively determined that the insurer does not consider itself represented by counsel in the matter. Clearly, if Plaintiff’s settlement offer contemplates an assignment of bad-faith claims, Plaintiff has been unsuccessful in negotiations with the insurance carrier, and the matter would appear to be headed for litigation. It would, therefore, be unethical for Plaintiff’s counsel to direct the settlement offer to Defendant in care of Defendant’s insurance adjuster without first having affirmatively determined that the insurer does not consider itself represented by counsel in the matter.
¶ 20 Summary:
* It is not unethical for Plaintiff’s lawyer to convey the offer of settlement described in the request, as long as she does so in a manner complying with Rules 4.1 and 4.2. The offer of settlement must not, therefore, contain a false statement of material fact or law.
* If Plaintiff’s counsel knows Defendant is represented by a lawyer in the matter, she must not communicate the offer directly to Defendant unless his lawyer has consented to the communication or it is otherwise authorized by Rule 4.2(a).
* If (a) Plaintiff’s counsel places the offer in an envelope addressed to Defendant or to Defendant in care of his lawyer, (b) the offer is delivered only to Defendant’s lawyer, and (c) that lawyer delivers the offer to Defendant unopened, this violates Rule 4.2.14
* If (a) Defendant’s lawyer opens the envelope addressed to him or his client, (b) the offer is written to Defendant or to Defendant in care of his lawyer, and (c) Defendant’s lawyer chooses to deliver the offer to the Defendant, the offer d onot violate Rule 4.2(a), but the content of the offer must comply with Rule 4.2(d)(1).
* If (a) the offer is written to Defendant or to Defendant in care of his lawyer, (b) the offer is delivered only to Defendant’s lawyer in an envelope addressed only to that lawyer, and (c) Defendant’s lawyer delivers the offer to Defendant, the offer does not violate 4.2(a), but the content of the offer must comply with Rule 4.2(d)(1).
* An offer of settlement contemplating assignment of bad-faith claims against Defendant’s insurance carrier would ordinarily not be made until after settlement negotiations have been unsuccessful with the insurance carrier, and the matter is likely to proceed to litigation. Therefore, the settlement offer should not be communicated directly by Plaintiff’s counsel to the insurance adjuster for the insurance company unless Plaintiff’s counsel has affirmatively determined that the insurer does not consider itself represented by counsel in the matter.
Footnotes
1.Bad-faith claims against an insurance carrier can arise in cases where (i) a defendant is protected up to fixed limits by an insurance policy, (ii) the insurance carrier unreasonably rejects an offer to settle the case at or below the policy limit, (iii) a judgment is ultimately rendered for an amount exceeding the policy limit, and (iv) defendant becomes liable for payment of the judgment amount in excess of that limit.
2.The request before the Committee does not involve circumstances of dishonesty, fraud, deceit or misrepresentation. See Rule 8.4(c).
3.Utah Ethics Advisory Op. 98-05, 1998 WL 199535 (Utah St. Bar).
4.The following authorities provide a discussion of these legal issues: State Farm Fire and Casualty Co. v. Grady, 925 S.W.2d 696 (Tex. 1996); State Farm Mutual Auto Ins. Co. v. Peaton, 812 P.2d 1002 (Ariz. App. 1990); Assignability of Insured’s Right to Recover Over Against Liability Insurer for Rejection of Settlement Offer, 12 A.L.R.3d 1158 (1967 & Supp. 1999).
5.Utah Rules of Professional Conduct 1.4, Comment: “A lawyer who receives from opposing counsel an offer of settlement in a civil controversy . . . shall promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.”
6.Utah Rules of Professional Conduct 1.2(a): “A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.”
7.Utah Rules of Professional Conduct 4.1, 4.2 (2000).
8.(a) General Rule. A lawyer who is representing a client in a matter 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:
(1) constitutional law, statute, or an agency regulation having the force of law;
(2) a decision or a rule of a court of competent jurisdiction;
(3) a prior written authorization by a court of competent jurisdiction obtained by the lawyer in good faith; or
(4) paragraph (b) of this rule [relating to government lawyers engaged in law enforcement].
Utah Rules of Professional Conduct 4.2(a) (2000). Note that, effective February 1, 1999, the Utah Supreme Court adopted a version of Rule 4.2 that is substantially different from ABA Model Rule 4.2. However, the differences primarily involve attorneys engaged in law enforcement and do not substantially change our analysis in this Opinion.
9.Unless Rule 4.2(a) is complied with, a settlement offer may not be communicated by a lawyer directly to the adverse party even if a copy is simultaneously delivered to the adverse party’s lawyer. See, e.g., Penn. Bar Ass’n, Op. 94-167 (Nov. 10, 1994). It is unethical for an attorney to send a copy of a letter concerning the subject of the representation to a represented opposing party, even if the opposing party’s attorney is copied on the letter, unless the attorney has the consent of the represented party’s attorney or unless the attorney is authorized by law to do so. See 26 A.L.R. 4th 102, “Communication with Party Represented by Counsel as Ground for Disciplining Attorney.” Likewise, unless the attorney has the consent of the represented party’s attorney or unless the attorney is authorized by law to do so, an attorney may not inquire directly of the opposing party about whether a settlement offer has been received, even if the attorney reasonably believes the opposing party’s attorney has not relayed the offer to his client. See ABA Formal Op. 92-362 (July 6, 1999).
10.Rule 4.2(d)(1), Limitations on Communications, provides: “When communicating with a represented person pursuant to this Rule, no lawyer may (1) inquire about information regarding litigation strategy or legal arguments of counsel, or seek to induce the person to forego representation or disregard the advice of the person’s counsel . . . .” This rule applies only when a lawyer is communicating with a represented person, as authorized by Rule 4.2, outside the presence of the represented person’s lawyer—for example, when the represented person’s lawyer has consented to the communication. Accordingly, a letter containing a settlement offer that is delivered directly to Defendant in violation of Rule 4.2(a) is not subject to Rule 4.2(d)(1). Furthermore, a letter containing a settlement offer written to Defendant or to Defendant in care of his lawyer that is not delivered to Defendant does not violate Rule 4.2(d)(1), regardless of its content, as there is no ex parte communication with a person represented by counsel in such cases. However, delivery to Defendant’s lawyer of a settlement offer written to Defendant or to Defendant in care of his lawyer with contents violative of Rule 4.2(d)(1) may constitute professional misconduct in violation of Rule 8.4(a), even if the letter is not delivered to Defendant. Rule 8.4(a) provides that it is professional misconduct for a lawyer to attempt to violate the Rules of Professional Conduct. Whether a settlement offer written to Defendant or to Defendant in care of his lawyer with contents violative of Rule 4.2(d)(1) which is not delivered to Defendant is an attempt to violate Rule 4.2(d)(1) will depend on a fact-intensive inquiry as to whether there is an intention that the offer be delivered to Defendant.
11.Defendant’s lawyer is not obligated in such cases to deliver the written offer to Defendant. Defendant’s lawyer’s obligation to keep Defendant reasonably informed about the status of the matter is satisfied by communicating to Defendant the substance of the offer of settlement. See Comment to Rule 1.4 (“A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a pro-offered plea bargain in a criminal case shall promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.”)
12.For the reasons explained in note 10, supra, even if the Defendant’s lawyer does not deliver the written offer to Defendant, the offer may constitute a violation of Rule 4.2(d)(1), depending upon an analysis of the content of the offer and the facts and circumstances of its delivery to Defendant’s lawyer.
13.Utah Ethics Advisory Op. 98-07, 1998 WL 493028 (Utah St. Bar).
14.Unless it is otherwise permitted.

Ethics Advisory Opinion No. 98-07

(Approved August 7, 1998)
Issue:
May the lawyer for the plaintiff in a personal-injury case directly contact the adjuster for defendant’s insurer without first obtaining the consent of the defendant’s attorney?

Opinion: Such a contact is improper if the lawyer for the plaintiff knows or reasonably should know that the insurer is represented by counsel in the case, either when the insurer has separate counsel or when it is represented by the same counsel as defendant. If defendant’s attorney does not also represent the insurer, plaintiff’s attorney need not obtain the consent of defendant’s attorney to contact the insurer or its attorney.
Analysis: Rule 4.2 of the Utah Rules of Professional Conduct prohibits a lawyer, in representing a client, from communicating “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.”
In connection with the typical insurance claim, the adjuster has been hired by the insurance company and acts as its agent. The contract between the insurance company and the insured provides for counsel for the insured, paid under the insurance contract. If there are no conflicts between the insurance company and the insured, counsel for the insured may act on behalf of both the insured and the insurance company. If there are conflicts, the insurance company will retain separate counsel if it wishes representation. The insured may also retain counsel outside of the insurance contract.
The question posed to the Committee involves one of two different situations: (a) the injured person has contacted a lawyer and is pursuing settlement of a claim on an informal basis; (b) the injured person and the insurance company have not been able to achieve a satisfactory resolution of the complaint, and the matter seems headed to litigation.
(a) In the first situation, the injured person has contacted a lawyer and is pursuing settlement of a claim on an informal basis. At this stage of informal dispute resolution, the plaintiff’s lawyer may wish to contact the insurance adjuster to achieve efficient claim resolution. Most typically in this situation, although the defendant’s contract of insurance provides for legal representation, a lawyer for defendant will not yet be involved. At this early stage, it is reasonable for the lawyer for the plaintiff to believe that neither defendant nor the insurance company is a “represented party” for purposes of Rule 4.2,1unless the lawyer has been informed by the adjuster or otherwise. So long as the attorney complies with the other Rules of Professional Conduct -for example, does not pretend to be a neutral party when he is representing the injured person2- the direct contact with the adjuster is proper.
(b) In a second situation, the injured person and the insurance company have not been able to achieve a satisfactory resolution of the claim, and the matter is either in or likely to proceed to litigation. The insured’s contract provides for defense from the insurance company, and pursuant to that contract, the company has provided the insured with counsel. Such insurance-provided counsel clearly represents the interests of the insured.3The question raised in the inquiry is, then, whether the insurance company should now be considered to be a “represented party” in the “matter.”
In the Committee’s view, the insurance company now has a direct interest in the results of any litigation or settlement and is a “party in the matter.”4Absent any indication to the contrary, therefore, the lawyer for the plaintiff reasonably should expect that the insurance company may be represented by counsel in this situation.5The Committee concludes that, at this stage, contact with the adjuster about the merits of the case would be improper unless plaintiff’s lawyer has affirmatively determined that the insurer does not consider itself represented by counsel in the matter. This conclusion is also reached in an ABA informal opinion,6and in ethics decisions from New Jersey,7Pennsylvania8and Vermont.9
In the absence of contrary information about the insurer’s internal decision-making process or hierarchy, plaintiff’s lawyer may verify the status of the insurer’s representation by counsel from the insurer’s adjuster. Contact of the insurance company’s general counsel or other person known to represent the company in such matters is another way to make the determination.
If plaintiff’s counsel determines that the insurance company is not represented in the matter, he may proceed to deal directly with the adjuster. If he has any reason to believe that the insurance company is likely to be represented, he must determine whether defendant’s counsel also represents the insurance company or whether anything has arisen that has caused the insurance company to retain separate counsel.
Finally, at any stage in these processes, the lawyer for the plaintiff may pursue settlement negotiations with the insurance adjuster after obtaining consent of the relevant attorney pursuant to Rule 4.2. In so doing, the lawyer for the plaintiff must comply with other applicable Rules of Professional Conduct, such as Rule 4.3.
Conclusion. Because the insurance carrier for a personal-injury defendant is a separate “party in the matter” for purposes of Rule 4.2, plaintiff’s attorney is responsible to determine whether the carrier is represented by counsel in the matter at hand. If plaintiff’s lawyer determines or reasonably should have determined that the insurance company is represented-either by the same attorney who represents defendant or by separate counsel-he may not contact the insurer’s adjuster directly without the consent of the carrier’s attorney. Ordinarily, plaintiff’s attorney may rely on the representations of the insurance company’s adjuster (as its agent) as to whether it is represented by counsel in the matter for purposes of Rule 4.2.
Footnotes
1.See Utah State Bar Ethics Advisory Op. 95-05, slip op. at 6-8, 1996 WL 73351, for interpretation of the meaning of “party to a matter” under Rule 4.2. In particular, “The ‘matter’ need not be a formal proceeding, but may be any matter for which a person has sought legal representation.” Id. at 6. See also In re Illuzzi, 616 A.2d 233 (Vt. 1992).
2.See Rule 4.3, Dealing with Unrepresented Person.
3.See, e.g., Rule 1.8(f):
A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-attorney relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.
4.See note 1, supra; see also In re Illuzzi, 616 A.2d 233 (Vt. 1992).
5.Some plaintiffs’ attorneys have contended that these are situations in which the insurance carrier is not a “party” to the matter under Rule 4.2 and, accordingly, plaintiff’s counsel could contact the insurer’s adjuster without consent. A representative from the Insurance Law Section of the Utah State Bar appeared before the Committee and related the views of some of the members of that section.
6.ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1149 (1970).
7.Heffner v. Jacobson, 469 A.2d 970 (N.J. Super. 1983).
8.Waller v. Kotzen, 567 F. Supp. 424 (E.D. Pa. 1983).
9.In re Illuzzi, 616 A.2d 233 (Vt. 1992).

Ethics Advisory Opinion No. 96-01

(Approved April 26, 1996)
Issue:
May a lawyer representing a defendant in multiple lawsuits asserting similar claims initiate and conduct ex parte communications with former plaintiffs who have settled their claims?

Opinion: Yes, but only if the settling plaintiffs are not represented by counsel and only after appropriate disclosures have been made by the lawyer to the settling plaintiffs.
Facts: A lawyer’s corporate client has been and is a defendant in multiple civil lawsuits. Certain lawsuits have been settled and others are pending. Most of the current lawsuits were filed by the same plaintiffs’ lawyers who represented the individuals whose claims have been settled.1
The lawyer’s client believes that random audits of the records of current claimants reveal a lack of basis for many of the claims asserted. The client desires to bring an action against the claimant lawyers who, in the client’s view, have asserted meritless current claims.
The client has asked the lawyer to interview some of the individuals who brought settled claims that the client believes were supported by false or questionable evidence. The objective of this investigation is to acquire evidence, if any, that the claimant lawyers knowingly recruited clients and deliberately submitted on behalf of those clients claims that were supported by fabricated evidence.
The client wants the lawyer to ask the settling plaintiffs to disclose what their lawyers told them about bringing the settled claims. The proposed communications with the settling plaintiffs would be initiated by the lawyer for the corporate client. The lawyer would not inform counsel who represented settling plaintiffs of these communications.
The client has advised the lawyer that it has no intention to seek redress from any of the individuals who have settled their claims.2Times to appeal or reopen have generally expired.
Analysis: The Utah Rules of Professional Conduct contain two basic rules regarding contact with persons who are not the lawyer’s client. The first is found in Rule 4.2, which forbids contact with represented parties, and the second is found in Rules 4.3 and 4.4, which govern contact with unrepresented parties and third persons.
Rule 4.2
The relevant portion of Rule 4.2 of the Utah Rules of Professional Conduct states:
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.3
Discussion of the last phrase of this Rule is quickly concluded: The corporation’s lawyer does not have consent (and indeed wants to initiate the conversation without notifying plaintiffs’ counsel) and does not propose to obtain a court order authorizing the communication.
Analysis of the first phrase of the Rule is more difficult and involves a discussion of whether the settling plaintiffs are “represented by another lawyer in the matter.” The issue is fact-specific and the burden of determining the person’s represented status is on the contacting lawyer. Under Utah law, in the absence of “disturbing events or special arrangement,” a lawyer’s employment comes to an end and the attorney-client relationship is terminated with the completion of the specific task for which the lawyer was employed.4Utah courts generally follow the common law rule that the employment of the defendant’s lawyer terminates upon entry of judgment, while the employment of the plaintiff’s lawyer terminates upon satisfaction of judgment.
In our situation, the question is whether the relationship between certain plaintiffs and their lawyer has terminated. We assume that final judgment has been entered on the settlement offered by defendant and accepted by plaintiff. The corporation’s lawyer, who desires to question those plaintiffs, must determine whether the judgment has been satisfied and whether there are other special circumstances that might rebut the presumption that the attorney-client relationship has thus terminated.5
If the settling plaintiffs are still represented by counsel, or if the corporation’s lawyer cannot confirm that the relationship between the settling plaintiffs and their counsel has terminated, Rule 4.2 would prohibit the proposed communications.
Careful attention to the current relationship between the settling plaintiffs and their counsel may allow the corporation’s lawyer to contact the settling plaintiffs without violating Rule 4.2. The burden of showing compliance with Rule 4.2 is, however, on the corporation’s lawyer.
Rules 4.4 and 4.3
Compliance with Rule 4.2 does not end the inquiry. The corporation’s counsel must also follow the Utah Rules of Professional Conduct on contacting unrepresented parties and third persons.
Utah Rule of Professional Conduct 4.4 states:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
The proposed communications with settling plaintiffs raise concerns under both parts of Rule 4.4.
First, the proposed communications would not be proper if they have no substantial purpose other than to embarrass, delay, or burden a third person. The client in this case is a defendant in ongoing litigation in which the lawyers it proposes to investigate represent plaintiffs. The question of whether the proposed communication “have no substantial purpose other than to embarrass, delay, or burden” plaintiffs or their lawyers in that litigation is a question of fact that should be considered and resolved.
Second, the proposed communications could constitute a “method of obtaining evidence that violates the legal rights” of the settling plaintiffs. In particular, any attorney-client privilege is a “legal right” of the settling plaintiffs within the meaning of Rule 4.4.6
Under Utah law the privilege would not attach to communications that the client knew or should have known were made for the purpose of facilitating a fraud.7If no privilege exists, the proposed communications would not violate any legal right of the settling plaintiffs. If the privilege exists, requesting this information without appropriate disclosure is a method of obtaining evidence that would violate Rule 4.4 by violating the settling plaintiffs’ legal rights to maintain the attorney-client privilege.8
The settling plaintiffs can waive the protection of the privilege and, in fact, may do so by answering questions from the corporation’s lawyer. These settling plaintiffs are likely to be lay persons who are generally uninformed about their rights with respect to the attorney-client privilege. Waiver of the privilege in this case may subject the settling plaintiffs to civil or criminal liability for their participation in presenting false or fraudulent claims to the court.
Therefore, in order for the corporation’s lawyers to comply with Rules 4.4 and 4.39in contacting the settling plaintiffs, they must make sufficient disclosures. Based upon the Rules, ethics opinions and case law, at least the following should be discussed:
* Identify the interviewer as a lawyer.10
* Disclose who the lawyer is representing.11
* Disclose the nature of the lawyer’s representation, including the fact that the person’s former lawyer may be an adverse party.12
* Ask if the person is currently represented by counsel.13
* Clarify that the lawyer is not representing the interviewee.14
* Clarify that the interviewee is not required to answer questions or supply information and that the interviewee may have counsel present.15
* Clarify that an attorney-client privilege may protect discussions between the interviewee and the interviewee’s counsel in the settled lawsuits, and that disclosing any of the contents of such discussions could waive that privilege as to all of the contents of such discussions so that anyone could find them out.16
It is the lawyer’s burden in this case to ensure that the lawyer’s actions will not violate the Rules of Professional Conduct. Assuming the settling plaintiffs are not represented by counsel and adequate disclosures are made, the corporation’s lawyer may contact the settling plaintiffs.
Footnotes
1.Although some of the lawsuits are class actions, all of the settling plaintiffs either opted out or never were members of a class. Accordingly, this opinion does not address issues relating to members of a class currently or formerly represented by class counsel.
2.The client is willing to authorize the lawyer to execute releases of any claims it might have against the former claimants (although not against the lawyers). Disclosure of facts showing that they participated in the filing of fraudulent claims could expose the individuals to criminal prosecutions or third-party claims. The proposed release could not insulate the individuals from such claims. Accordingly, this opinion does not consider the proposed release as a factor.
3.Rule 4.2 was amended effective April 1, 1996, by the addition of two sentences dealing with ex parte contacts of government officials. The change has no effect on the analysis in this opinion.
4.Sandall v. Sandall, 193 P. 1093 (Utah 1920) (the attorney-client relationship ended with respect to the divorce, even though a relationship with the same lawyer existed with respect to criminal matters); Atkinson v. Atkinson, 490 P.2d 729 (Utah 1971) (child custody modification considered a separate employment from the original divorce/custody proceeding); Shulder v. Dickson, 243 P. 377 (Utah 1928) (appeal considered a separate employment from the original lower court matter).
5.See also ABA Formal Op. 95-396, “Communications with Represented Persons” (1995). In the context of contact with a person who is known to have been represented by counsel, the communicating lawyer should not proceed without reasonable assurance that the representation has in fact been terminated. “As a practical matter, a sensible course for the communicating lawyer would generally be to confirm whether in fact the representing lawyer has been effectively discharged.”
6.ABA Formal Op. 91-359, “Contact with Former Employee of Adverse Corporate Party” (1991). In the context of ex parte communications with former employees of an adverse corporate party, “with respect to any unrepresented former employees, of course, the potentially communicating adversary attorney must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer’s counsel are protected by the privilege. . . . Such an attempt could violate Rule 4.4.”
7.See State v. Carter, 578 P.2d 1275 (Utah 1978); In re September 1975 Grand Jury Term, 532 F.2d 734 (10th Cir. 1976); Utah R. Evid. 504(d)(1).
8.Cf. Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (noting ABA Formal Op. 91-359); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341, 347 (D. Conn. 1991) (efforts by counsel to induce or listen to privileged communications may violate Rule 4.4); Brown v. St. Joseph County, 148 F.R.D. 246, 255 (N.D. Ind. 1993) (counsel must refrain from seeking, inducing or listening to the disclosure of any matter protected by the attorney-client privilege). Shearson Lehman concerned an attempt to contact the former employees of an opposing corporate party under circumstances where the former employees might waive the corporate party’s attorney-client privilege. Here, the settling parties themselves are the holders of any applicable privilege.
9.Rule 4.3 states:
(a) During the course of a lawyer’s representation of a client, the lawyer shall not give advice to an unrepresented person other than the advice to obtain counsel.
(b) 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. 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.
Because we assume for purposes of this Rule 4.4 discussion that the settling plaintiffs are no longer represented by counsel, Rule 4.3(a) would prohibit the corporation’s lawyer from providing any advice other than the advice to obtain counsel. The ABA notes that the offer of an opinion on legal issues in support of a position, where the opinion is not proffered as advice to the unrepresented person, does not violate Rule 4.3(a). ABA Informal Op. 1502 (1983).
10.Rules 4.3 and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to make clear the nature of his role).
11.Rule 4.3(b); Shearson Lehman, 139 F.R.D. at 418; University Patents v. Kligman, 737 F. Supp. 325 (E.D. Pa. 1990); Siguel v. Trustees of Tufts College, 1990 WL 29199 (D. Mass. 1990); Lizotte v. NYC Health & Hosp. Corp., 1990 WL 267421 (S.D.N.Y. 1990).
12.Rules 4.4, 4.3, and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to identify client and fact that interviewee’s former employer is an adverse party); University Patents, 737 F. Supp. at 328; Tufts College, 1990 WL 29199, *7.
13.Rule 4.2; Upjohn v. Aetna Cas. and Sur., 768 F. Supp. 1186, 1215 (W.D. Mich. 1990). Of course, once a settling plaintiff seeks independent legal counsel for advice, the corporation’s lawyer is prevented by Rule 4.2 from contacting the settling plaintiff directly.
14.Rule 4.3(b).
15.In re Domestic Air Transport Antitrust Litigation, 141 F.R.D. 556, 562 (N.D. Ga. 1992); University Patents, 737 F.Supp. at 328; Tufts College, 1990 WL 29199, *7; Lizotte, 1990 WL 267421, *5.
16.Rules 4.4 and 4.3.
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Ethics Advisory Opinion No. 95-05

(Approved January 26, 1996)
Issue.
What is the relationship between Rule of Professional Conduct 4.2 and a 1994 U.S. Department of Justice regulation purporting to authorize certain ex parte contacts with persons known to be represented by counsel?

Issue No. 2:
Assuming that the Regulation does not constitute a “law” for purposes of Rule 4.2, under what conditions may a government lawyer make ex parte contact with persons known to be represented by counsel?

Issue No. 1:
Is the definition of “represented party” in § 77.3(a) of the Regulation consistent with the definition of “party” in Rule 4.2 of the Utah Rules of Professional Conduct? In other words, does Rule 4.2 apply only to ex parte contacts with a party in an adversary proceeding.
Issue No. 2: Assuming that the Regulation does not constitute a “law” for purposes of Rule 4.2, under what conditions may a government lawyer make ex parte contact with persons known to be represented by counsel?

(Approved January 26, 1996)
Issue. What is the relationship between Rule of Professional Conduct 4.2 and a 1994 U.S. Department of Justice regulation purporting to authorize certain ex parte contacts with persons known to be represented by counsel?
Introduction. On August 4, 1994, the United States Department of Justice (the “Department”) promulgated a regulation titled “Communications With Represented Persons” (the “Regulation”).1The Regulation authorizes Department attorneys during criminal and certain civil investigations to communicate with persons the attorney knows is represented in the matter by legal counsel without the prior authorization of the person’s counsel. Rule 4.2 of the Model Rules of Professional Conduct2does not generally permit ex parte contacts of this type. However, the Department contends that the Regulation constitutes “law” that permits these ex parte contacts under the “authorized by law” exception to the general rule. Even if the regulation is not a “law” under Rule 4.2, the Department intends that the Regulation preempt and supersede Rule 4.2.
The Committee has been asked (1) to analyze the scope of the term “party” in Rule 4.2 in connection with the Regulation and (2) to consider prosecutors’ ex parte communications under Rule 4.2 assuming that the Regulation is not “law” for purposes of the Rule. It is, therefore, beyond the scope of this opinion to address (a) whether the Regulation is, as a matter of law, a valid, authorized and duly promulgated substantive regulation or (b) whether the Regulation, if valid, authorized and duly promulgated, preempts and supersedes the Utah Rules of Professional Conduct under the Supremacy Clause of the U.S. Constitution.
Issue No. 1: The Regulation precludes ex parte contacts by Department of Justice lawyers with individuals who are targets of federal investigations only when the person is a “represented party,” i.e., a person who has been arrested or charged or is a defendant in a civil enforcement proceeding and is represented by counsel for the matter. Does the class of such “represented parties” coincide with the definition of “party” in Rule 4.2 of the Utah Rules of Professional Conduct?
Opinion: No. The word “party” in Rule 4.2 of the Utah Rules of Professional Conduct means a “party to a matter” for which legal representation has been obtained, not the more limited “party to a legal proceeding.” Subject to the exceptions stated in the rule, Rule 4.2 intends to restrict unauthorized ex parte contracts with any person who is represented by counsel concerning the matter in question, whether or not the person is a party to a formal legal proceeding. Therefore, Rule 4.2 restrictions are intended to apply to “represented persons,” with whom the Regulation would permit certain ex parte contacts.
Issue No. 2: Assuming that the Regulation does not constitute a “law” for purposes of Rule 4.2, under what conditions may a government lawyer make ex parte contact with persons known to be represented by counsel?
Opinion: Under certain specific factual circumstances, a government lawyer may make ex parte contacts with persons represented by counsel.
ANALYSIS
Background: Rule 4.2 of the Utah Rules of Professional Conduct provides as follows:
Communications with Person Represented by Counsel.
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.
In 1988, Rule 4.2 replaced DR 7-104(A)(1) of the Utah Code of Professional Responsibility,3which similarly had provided as follows:
Communications with One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The corresponding Ethical Consideration EB 7-18 provided in part as follows:
The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.
The language in DR 7-104(A)(1) did not clearly reveal whether it applied only to adversarial relationships between litigants.4The heading of DR 7-104(A)(1) uses the phrase “Adverse Interest,” and the rule itself uses the word “party” along with the phrases “subject of the representation” and “in that matter.” The word “party” often refers to a participant in a legal proceeding.5Thus, because DR 7-104(A)(1) uses the word “party,” it arguably applies only to adverse litigants in a legal proceeding. In contrast, DR 7-104(A)(2), concerning communications with “a person who is not represented by a lawyer,” uses the word “person.”6
Several courts have interpreted DR 7-104(A)(1) to apply only after the formal initiation of adversarial proceedings. For example, these courts have held that, in criminal proceedings, prosecutors are not restricted by DR 7-104(A)(1) during investigations prior to any charge, arrest or indictment, even if the person contacted is a target of the criminal investigation.7
Other courts, however, have held that, although DR 7-104(A)(1) requires adversity between parties, it does not require participation in a formal legal proceeding. These courts have thus applied DR 7-104(A)(1) to prosecutor contacts with represented persons prior to charge, arrest or indictment. In United States v. Hammad,8 for example, the Second Circuit Court of Appeals held that pre-indictment contacts with represented persons that are the target of an investigation were within the ambit of DR 7-104(A)(1). Ultimately, however, the court found that certain investigative contacts were “authorized by law” and permitted by DR 7-104(A)(1).
The Department, concerned with the Hammad decision, feared that inconsistent interpretations of the ex parte contact rules promulgated by state bar associations would impair prosecutorial participation in pre-indictment investigations. Thus, on June 8, 1989, U.S. Attorney General Richard Thornburgh issued a memorandum to all Department litigators dealing with the subject of “Communications with Persons Represented by Counsel.” Referred to as the “Thornburgh Memorandum,” it authorized federal prosecutors, “in the course of authorized law enforcement activity,” to make certain unconsented ex parte contacts with persons who were the targets of federal investigations and who were known by the federal prosecutors to be represented by counsel in the matters being investigated.
The Thornburgh Memorandum stated that this activity (1) would be legal authorization under the “authorized by law” exception in Rule 4.2 and (2) would, in any event, control over state and local ethical rules under the Supremacy Clause of the United States Constitution.9The Thornburgh Memorandum generated considerable controversy,10 and in 1994 the Department officially promulgated the Regulation codified at 28 C.F.R. Pt. 77, purporting to accomplish the same result as the Thornburgh Memorandum.
Similar to the Thornburgh Memorandum, the Regulation authorizes certain lawyers employed by the Department, prior to charge, arrest or indictment, to make unconsented ex parte contacts with persons the attorney knows to be represented by counsel in the matter being investigated. Significantly, the Regulation distinguishes between a “represented party” and a “represented person.” A person is a “represented party” only if all three of the following circumstances exist: “(1) the person has retained counsel or accepted counsel by appointment or otherwise; (2) the representation is ongoing and concerns the subject matter in question; (3) the person has been arrested or charged in a federal criminal case or is a defendant in a civil law enforcement proceeding concerning the subject matter of the representation.”11
However, if the person has not yet been arrested or been charged in a federal criminal case or is not yet a defendant in a civil law enforcement proceeding,12then the person is considered a “represented person” if the first two conditions of a “represented party” are met (the person is represented by counsel concerning the subject matter in question.) The Regulation permits only limited ex parte contract with a “represented party” without the consent of that party’s counsel. However, the Regulation permits much greater ex parte contact with a “represented person.”13The Department intends the Regulation to identify communications that are “authorized by law” within the meaning of Rule 4.2 of the ABA Model Rules of Professional Conduct and DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility.14Additionally, the Regulation purports to preempt a state’s local rules that relate to ex parte contacts by federal government with “represented parties” or “represented persons” in criminal and civil law enforcement investigations or proceedings.15
The Utah State Bar, concerned about potential conflicts between Utah Rule of Professional Conduct 4.2 and the Regulation, appointed an ad hoc committee consisting of government and private attorneys to study the Regulation. The committee has requested the Ethics Advisory Opinion Committee to render an opinion on two issues.
Issue No. 1: Is the definition of “represented party” in § 77.3(a) of the Regulation consistent with the definition of “party” in Rule 4.2 of the Utah Rules of Professional Conduct? In other words, does Rule 4.2 apply only to ex parte contacts with a party in an adversary proceeding.
Unlike DR 7-104(A)(1), Rule 4.2 and its comment clearly apply to contacts with any person who is represented in the matter in question. The word “party” in Rule 4.2 cannot be interpreted to mean “party to a legal proceeding.” Rule 4.2 is titled “Communication with Person Represented by Counsel.” Neither the title nor the rule itself refers to adversity or adverse interests. Additionally, the comment clarifies that “This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.”16Thus, the word “party” in Rule 4.2 means a “party to the matter” that is the subject of the representation.17The “matter” need not be a formal proceeding, but may be any matter for which a person has sought legal representation.
This interpretation is consistent with the purposes behind Rule 4.2.18Rule 4.2 was enacted to “prevent lawyers from taking advantage of uncounseled lay persons and to preserve the integrity of the lawyer-client relationship.”19 Additionally, Rule 4.2 intended to protect the lawyer-client relationship against breach by a lawyer representing another.20Thus, any protection under Rule 4.2 should be applied to a person as soon as an attorney-client relationship is formed and not upon the filing of a complaint, charge or indictment or other commencement of a legal proceeding.21If Rule 4.2 applied only to litigants to a formal legal proceeding, transactional lawyers would, for example, be free to undermine the attorney-client relationship and use ex parte contact to form and document legal agreements.22
This interpretation of Rule 4.2 is supported by the leading commentators on the subject. Professor Wolfram has stated:
Although the matter is not entirely clear under the Code, probably DR 7-104(A)(1) and, clearly, MR 4.2 prohibit contact with any represented person, including those whose interests are apparently not adverse to the interests of an existing client of the lawyer. Any attempt to distinguish between adverse and nonadverse parties might invite attempts to obtain uncounseled concessions from a represented but uncounseled party at a time before the differing interests of the party become fully apparent.23
Finally, in partial response to this confusion over “party” v. “person,” the American Bar Association has recently amended Model Rule 4.2 to change the term “party” to “person.”24
Summary. Because Rule 4.2 addresses ex parte contacts with any represented person in the matter in question, the Regulation is not consistent with Rule 4.2. Thus, setting aside the issue of the authorized-by-law exception, a prosecutor would violate the Utah Rules of Professional Conduct if he made an ex parte contact, or caused another to make an ex parte contact,25with a person the prosecutor knew was represented by counsel in the matter being investigated unless the prosecutor obtained the consent of that person’s lawyer.
Issue No. 2: Assuming that the Regulation does not constitute a “law” for purposes of Rule 4.2, under what conditions may a government lawyer make ex parte contact with persons known to be represented by counsel?
The Regulation purports to authorize contacts that Utah’s Rule 4.2 would limit or forbid. Regulation Section 77.7, Represented Persons: Investigations, provides:
Except as otherwise provided in this part, an attorney for the government may communicate, or cause another to communicate with the represented person while in the process of conducting an investigation, including, but not limited to, an undercover investigation.26
The clear language of Rule 4.2 forbids a lawyer to communicate with a represented person on the subject matter of that representation. The Regulation’s purpose-to exempt Department of Justice lawyers from the ethical constraints of Rule 4.2 that all other attorneys remain bound to follow, including state and local prosecutors-has caused its share of controversy. The American Bar Association, in part prompted by the issuance of the Regulation by the Department of Justice, recently issued Formal Opinion 95-396,27 which addresses 10 separate issues on this subject, many of which detail the extent to which ex parte contacts can be made by a Department of Justice lawyer under Rule 4.2.28
In a criminal law setting, the stakes may be higher but the rules are the same.29 Because these rules affect law enforcement techniques, it has been suggested, with occasional success, that different answers are appropriate in the criminal law setting-particularly in the investigatory stages of a matter.30
Not all ex parte contacts by government lawyers of represented persons are forbidden under Rule 4.2.:
a. Ex Parte Contacts on a Different Subject Matter. A lawyer is not barred from communicating with a represented person on topics that are not the subject of the representation.31
b. Ex Parte Contacts Absent Knowledge. Absent knowledge of representation or the reasonable inference of knowledge of representation, the lawyer is not barred from communicating with a represented person.32
c. Ex Parte Contacts After Representation is Terminated. If the represented person declares that a representation is terminated or that he intends to terminate the representation, substantive discussion of the subject of the representation may occur after the lawyer obtains reasonable assurance that the representation has been in fact terminated.33
d. Ex Parte Contacts of Corporate Employees. In a corporate setting, the lawyer is limited in communicating with employees who have managerial responsibility in a corporation or other organization that is represented with respect to a particular matter, but this bar does not apply to other employees in the organization that have no authority to bind the organization.34
It is worth noting two areas where ex parte contact is generally not permitted:
a. Ex Parte Contacts Initiated by the Represented Person. If a person known to have been represented initiates the contact with the lawyer, the bar of Rule 4.2 is nonetheless present and it has been held that the client cannot waive it.35
b. Ex Parte Contacts in the Investigatory Stage of a Proceeding. Ex parte contact with a represented person in the investigatory stage of a case is generally forbidden even though exigent circumstances can be argued.36Rule 4.2 imposes the burden on the opposing counsel to use investigatory means other than direct contact with a represented person. However, there are a number of decisions that limit the applicability of Rule 4.2 in the preindictment, non-custodial setting.37Indeed, American Bar Association Formal Opinion 95-396 holds that, to the extent this precedent is good law, such decisional authority is “law” within the “authorized by law” exception of Rule 4.2. Nonetheless, other than decisions from the Utah judiciary on the subject, the Utah rules do not regard such rulings as “law” within the “authorized by law” exception of Rule 4.2.38
The Comment to Rule 4.2 of the Rules of Professional Conduct contains no evidence that Utah intended decisional law of the federal courts concerning DR 7-104(A)(1) or Rule 4.2 to constitute “law” within the meaning of the “authorized law” exception to Rule 4.2.39Contrast the decision in United States v. Lopez,40which was dictated by the comment to California Rule 2-100 that “applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law.”41
Further, a lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer would be prohibited from doing so.42However, where the government lawyer is not directing the undercover operation that involves contacts with represented individuals with respect to the matter under investigation, it has been held that the predecessor to Rule 4.2 was not violated.43
Summary. If the Regulation does not constitute “law” under the “authorized by law” exception of Rule 4.2, government lawyers may, under certain specific circumstances detailed in this Opinion, make ex parte contacts with represented persons without violating Rule 4.2 of the Utah Rules of Professional Conduct.
Footnotes
1.28 C.F.R. Pt. 77 (1994).
2.Utah’s Rule 4.2 is identical to Rule 4.2 of the American Bar Association’s Model Rules of Professional Conduct (1983) prior to its recent amendment. See note Error! Bookmark not defined. and accompanying text.
3.DR 7-104(A)(1) of the Utah Code of Professional Responsibility and the American Bar Association Model Code of Professional Responsibility (1969) were identical.
4.While DR 7-104(A)(1) no longer governs lawyer conduct in Utah, it is still used in jurisdictions that have not adopted the Model Rules of Professional Conduct.
5.The Utah Rules of Civil Procedure and the Utah Rules of Evidence use the word “parties” to refer to litigants in a legal proceeding. However, Black’s Law Dictionary (rev. 4th ed.) defines “party” as follows: “A person concerned or having and taking part in any affair, matter, transaction, or proceedings, considered individually.”
6.”During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” Model Code of Professional Responsibility, DR 7-104(A)(1). See, e.g., United States v. Ryan, 903 F.2d 731, 739 (10th Cir. 1990). Rule 4.2 of the Utah Rules of Professional Conduct also uses the word “party” in the text of the rule, while Rule 4.3 uses the word “person.”
7.These cases have taken the view the DR 7-104(A)(1) is coextensive with the accused’s Sixth Amendment right to counsel. They have reasoned that, prior to arrest or indictment, the contours of the “subject matter of the representation” are too uncertain for protection and are less susceptible to damage. See, e.g., Ryan, 903 F.2d at 739; United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986); United States v. Dodds, 711 F.2d 84 (8th Cir. 1983); United States v. Fitterer, 710 F.2d 1328 (8th Cir. 1983); United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981); United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1974).
8.858 F.2d 834, 839 (2d Cir. 1988). See also United States v. Jamil, 546 F. Supp. 646, 653-54 (E.D.N.Y. 1982), rev’d on other grounds, 707 F.2d 638 (2d Cir. 1983).
9.U.S. Const. art VI, cl. 2.
10.In response to the Thornburgh Memorandum, the American Bar Association passed a resolution rejecting the Department of Justice’s attempt “unilaterally to exempt its lawyers from the professional conduct rules that apply to all lawyers under applicable rules of the jurisdictions in which they practice.” ABA House of Delegates Report No. 301 (approved Feb. 12-13, 1990).
11.28 C.F.R. § 77.3(a).
12.28 C.F.R. § 77.3(b).
13.Cf. 28 C.F.R. § 77.5 and 28 C.F.R. § 77.7. Attorney General Janet Reno added other restrictions in contacts by Justice Department attorneys with “represented persons” in the United States Attorneys’ Manual §§ 9-13.200 et seq. (Aug. 25, 1994). Even with these additional restrictions, Justice Department attorneys are permitted broader unconsented ex parte contact with a “represented person” than with a “represented party.”
14.28 C.F.R. § 77.12.
15.Id.
16.Utah Rules of Professional Conduct, Rule 4.2 cmt. The Comments to the Rules “are intended as guides to interpretation.” Id., “Scope.”
17.C.W. Wolfram, Modern Legal Ethics § 11.6.2, at 611 n.33 (1986). “The lawyerism party sometimes refers only to parties in litigation but evidently is here (in Rule 4.2 and DR 7-104(1)(A)) intended to refer broadly to any ‘person’ represented by a lawyer in the matter. Vide ‘party of the first part’ in ancient contracts.”
18.The Rules of Professional Conduct should be interpreted with reference “to the purposes of legal representation and of the law itself.”
19.Annotated Model Rules of Professional Conduct, Rule 4.2, at 424 (2d ed.). See United States v. Lopez, 4 F.3d 1455, 1459 (9th Cir. 1993) (“uncurbed communications with represented parties could have deleterious effects well beyond the context of the individual case, for our adversary system is premised upon functional lawyer-client relationships”).
20.Legislative History of the Model Rules, Rule 4.2, at 148.
21.Jamil, 54 F. Supp. at 653 (application of DR 7-104(A)(1) “depends upon the existence of the attorney-client relationship, not upon the existence of a pending lawsuit”).
22.Rule 4.2 applies to transactional lawyers as well as to litigators. It is noteworthy that the Regulation recognizes that, during the negotiation and documentation of agreements, unconsented ex parte contacts should not occur. See 28 C.F.R. § 77.8.
23.C.W. Wolfram, supra note 17, § 11.6.2, at 611 (emphasis in original). See also G.C. Hazzard Jr. and W.W. Hodes, The Law of Lawyering, § 4.2:105 at 733-34 (1993) (“[a] more realistic reading, and one more in keeping with the purpose of [Rule 4.2], would be to count as off limits any represented ‘party’ with whom a lawyer already has an adverse relationship of any kind”). While adversity may have been a requirement of DR 7-104(A)(1), it is not a requirement of Rule 4.2.
24.[21:1] ABA Litigation News 5 (Oct./Nov. 1995). The changes to Model Rule 4.2 also include an amendment to the comment that indicates the rule was intended to apply to government attorneys conducting investigations prior to the initiation of criminal or civil proceedings.
25.See Utah Rules of Professional Conduct 8.4(a).
26.28 C.F.R. Pt. 77.7.
27.American Bar Association, Committee on Ethics and Professional Responsibility, Formal Op. 95-396 (July 24, 1995) [hereinafter "ABA Op. 95-396"].
28.The questions framing this examination of the Rule are these: (1) Does Rule 4.2 apply to the conduct of lawyers in criminal as well as civil matters? (2) Does a represented “party,” under the Rule, mean only a person who is a formally designated party to an adjudicative proceeding, contract or negotiation, or does it apply more broadly to any person who is represented by counsel with respect to the matter that is the subject of the communication? (3) In the context of criminal investigations, does the prohibition apply differently before arrest or the filing of formal charges than it does after those event? (4) Does the prohibition apply if the communicating lawyer does not have definite knowledge that the person with whom she wishes to communicate is represented in the matter to be discussed? (5) What is the scope of the subject matter about which communication is prohibited? (6) May a lawyer representing a corporation or other organization bar communication with all employees of the organization by declaring a blanket representation of the organization and its employees? (7) May a lawyer communicate with a represented person absent consent of that person’s lawyer if that person initiates the contact? (8) May a lawyer communicate with a person known to have been represented in the matter to be discussed who states that she has terminated or intends to terminate the representation? (9) To what extent does the prohibition on a lawyer’s communicating with a represented person apply also to investigative agents acting under the direction of a lawyer? (10) What communications with represented person fall within the “authorized by law” exception of Rule 4.2?
29.State v. Morgan, 646 P.2d 1064 (Kan. 1982); ABA Op. 95-396 and citations at n.10.
30.United States v. Ryans, 903 F.2d 731 (10th Cir. 1990), cert. denied, 498 U.S. 855 (1990); United States v. Heinz, 983 F.2d 609 (5th Cir. 1993).
31.People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986); ABA Op. 95-396.
32.ABA Op. 95-396.
33.ABA Op. 95-396.
34.ABA Formal Opinion 95-396 reaffirms the corporate employees that may not be contacted are “[p]ersons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” See also Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984).
35.United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); ABA Op. 95-396; ABA Formal Opinion 108 (1934); but see People v. Rubanowitz, 688 P.2d 231 (Colo. 1984), where such contact was held not to violate the anti-contact rule.
36.United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990); United States v. Lopez, 765 F. Supp 1433 (N.D. Cal. 1991), rev’d on other grounds, 4 F.3d 1455 (9th Cir. 1993); Cronin v. Eighth Judicial Dist. Court, 781 P.2d 1150 (Nov. 1989); Utah Ethics Advisory Opinion No. 18 (February 23, 1974). An attorney may not send a copy of a letter that was sent to opposing counsel to the client on the need to answer interrogatories, even where the client may be uncooperative and the lawyer unable to control the client and the purpose of the letter was solely to get facts in a case.
37.United States v. Ryans, 903 F.2d 731 (10th Cir. 1990); United States v. Jamil, 707 F.2d 638 (2d Cir. 1983).
38.Rule 103-1(h) of the Local Rules of Practice of the United States District Court for the District of Utah requires attorneys appearing before the District Court to “comply with the Rules of Practice adopted by this court, and unless otherwise provided by these rules, with the Utah Rules of Professional Conduct, as revised and amended and as interpreted by this court.” Thus, for conduct within the purview of the United States District Court, it retains authority to interpret its rules and the Utah Supreme Court rules and any effect of the Regulation. This, of course, does not affect the authority of the Utah State Bar to make its own determination on the same conduct, if requested.
39.See In re Doe, 801 F. Supp. 478, 486 (D.N.M. 1992): “As an exception to the general rule, however, _authorized by law_ must be narrowly construed.”
40.4 F.3d 1455, 1461 (9th Cir. 1993)
41.But see United States v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988): “[T]he use of informants by government prosecutors in a preindictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the ‘authorized by law’ exception to DR 7-104(A)(1) and therefore will not be subject to sanctions.”
42.Utah Rules of Professional Conduct 5.3 and 8.4. The lawyer supervising the investigator is responsible for the ex parte contacts of represented persons. An investigator cannot ethically make contacts the lawyer is barred from making. See also ABA Op. 95-396; ABA Op. 95 (1933).
43.Utah Rules of Professional Conduct 5.3 and 8.4; United States v. Jamil, 707 F.2d 638, 645-46 (2d Cir. 1983) (informant held not acting as alter ego of prosection); United States v. Lemonakis, 485 F.2d 941, 954-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).