Ethics Advisory Opinion 15-04

Utah State Bar

Ethics Advisory Opinion Committee
Proposed EAOC 15-04
Issued September 30, 2015

                         

ISSUE

  1. When may a lawyer directly contact a former employee who had been within the control group of an adverse party such as a corporation?

OPINION

  1. A lawyer may contact a former employee who had been within the control group of an adverse party, but may not communicate about any matters that are covered by the attorney-client privilege. The lawyer may only communicate about the former employee’s observations that were not communicated to corporate counsel, and may not ask about any communications with the corporate counsel or discuss any work product that resulted from those communications.

FACTS

  1. Lawyer represents client in employment discrimination case. The proposed witness to be interviewed is the former Human Relations Director (HRD) of the adverse corporation. The former HRD was the client contact for the adverse corporation.  The former HRD tells client that he has all of the information needed to support client’s case and knows of several more employment discrimination cases against the adverse corporation.  Witness specifically asks the lawyer to contact him prior to his deposition.  Lawyer does not have permission of opposing counsel to speak with the proposed witness and in fact was told to have no extra-judicial contact with the former HRD.

ANALYSIS

  1. RPC 4.2(a) provides: “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.”
  2. As EAOC Opinion 04-04 explains, Rule 4.2 “does not bar a lawyer’s unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances. . . .”(emphasis added). Comment 19 similarly provides: “In general, however, a lawyer may, consistent with this Rule, interview a former employee of an organization without the consent of the organization’s lawyer.” However, because the HRD was a member of the control group, any interview of the HRD must be carefully circumscribed to avoid inquiring into privileged communications or work product.
  3. Pursuant to Rule 504(d) of the Utah Rules of Evidence, the former HRD was a representative of the client.[1] He was a person who obtained professional legal services on behalf of the client.  He was expected to act on the advice of counsel and most importantly, he was the individual selected and specifically authorized to communicate with opposing counsel concerning the legal matters involved in the ongoing lawsuit.
  4. The advice and directions of opposing counsel to former HRD are communications under Evidence Rule 504(d)(5).[2] They are also “confidential communications” pursuant to Evidence Rule 504(d)(6).[3]
  5. It is irrelevant that HRD was a natural person seeking legal advice and representation on behalf of the now defendant corporation. The Utah Supreme Court defined the scope of corporate representation in Moler v. CW Management Corp., 190 P.3d 1250 (Utah 2008):

We begin and end our analysis with a plain-language review of Utah Rule of Evidence 504:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, in any combination.
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Ethics Advisory Opinion 15-02

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 15-02

Issued February 10, 2015

 

PROPRIETY OF EX PARTE CONTACT WITH INDIVIDUALS WITHIN AN ORGANIZATION

ISSUE

1.  May an attorney representing a party in pending or existing litigation contact servants, agents, and employees of an organization, which is the opposing party, to discuss issues directly related to the litigation, if the attorney is aware the organization is represented by counsel in the matter?  Is it ethical for an attorney to make contact directly with in-house or corporate counsel, even if the attorney is aware that the organization is represented by outside counsel in the matter?  Is it ethical for an attorney to send a copy of correspondence or email to an organization’s employee where the original is directed to opposing counsel?

 FACTS

2.  The query before the Committee relates to the issue of the propriety of an attorney making contact with a servant, agent, or employee of an organization which is potentially or is in fact involved in litigation, where the contacting attorney knows or has reason to know that the organization is represented by counsel.  The related question pertains to the same issue, except that the contact in question is with the organization’s in-house or corporate counsel.  Lastly, is it ethical for an attorney to send a copy of correspondence to an employee, the original of which is directed to opposing counsel for an organization?

 OPINION

3.  Communications, concerning the subject matter of anticipated, proposed or current litigation, are improper, if the individual being contacted is either (1) an employee of the target organization within the current “control group,” or (2) the individual’s acts, omissions or statements in the matter might be imputed to the opposing organization.  Contact with in-house counsel may be permissible, depending on the circumstances, as discussed below.

ANALYSIS

 4.  This opinion involves what has sometimes been referred to as the “no contact without consent” rule.  Utah Rules of Professional Conduct (URPC), Rule 4.2, Communication with Persons Represented by Counsel, states the general rule as follows:

(a) General 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 the lawyer has the consent of the other lawyer.  Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another’s client if authorized to do so by any law, rule, or court order,[1] in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.[2]

5.  As a general matter, subject to the exception that a lawyer may “communicate with another’s client if authorized to do so by any law, rule, or court order,” Rule 4.2 requires that a lawyer 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.”  Rule 4.2(a) (emphasis added).  The Rule “applies to communications with any person who is represented by counsel concerning the matter to which the communication relates,” and “applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.”  Comment (3) and (4) to Rule 4.2.  Rule 4.2 is broadly consistent with the general rules set forth in § 99, A Represented Nonclient – The General Anti-Contact Rule, The Restatement (Third) of the Law Governing Lawyers; See also The Law of Lawyering, Hazard, Hodes & Jarvis, §§ 4.01 and 41.02.
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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?

OPINION

It is a violation of Rule 4.2 for a government entity’s attorney’s office to send a litigation hold e-mail to an adverse represented employee because the e-mail relates to the subject of litigation and none of the exceptions listed in Rule 4.2 apply.

ANALYSIS

            This issue is controlled by Rule 4.2.  Rule 4.2(a) provides that:

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.  Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another’s client if authorized to do so by any law, rule, or court order, in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.

The referenced exceptions in Paragraphs (b), (c), (d), and (e) deal with, respectively, cases involving unbundled legal services, government lawyers engaged in civil or criminal enforcement matters, organizations as represented persons, and inquiries about privileged communications and settlement.  The Committee does not express an opinion regarding these specific, enumerated exceptions, but instead addresses the issue presented only under Paragraph (a)’s general requirement.[1]

Rule 4.2(a) prohibits an attorney from communicating with a represented party “about the subject of the representation.”  The term “subject of the representation” is not clearly defined by the Rule.  However, Comment 5 to the Rule indicates that an ex parte contact with a represented party might be acceptable if “the communication is outside the scope of the representation” or “regarding a separate matter.”  See Utah R. Prof. Cond. 4.2 at cmt. 5.  This language demonstrates that the closer the subject of communication is to the case at issue, the more likely it will violate the Rule.  It also indicates that for a communication to be acceptable, it must relate to a different topic that is unrelated to the case in which the party is represented.

The hypothetical communication described in the issue here presented relates to the subject of the representation.  The e-mail requests that the employee preserve all documents related to the represented party’s claims and answer questions about those documents’ location.  Although there is presumably little substantive information requested or exchanged, the communication is not “outside the scope” of the representation or related to “a separate matter.”  See Utah R. Prof. Cond. 4.2 at cmt. 5.  Therefore, the proposed e-mail would be a communication about the subject of the representation.
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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 (more…)

Ethics Advisory Opinion No. 04-04

Utah State Bar Ethics Advisory Opinions
Opinion No. 04-04
Issued August 25, 2004
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?

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.
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).
Analysis: In 1991, the ABA’s Committee on Ethics and Professional Responsibility addressed whether Model Rule 4.2 limits contacts with former employees. In ABA Formal Opinion 91-359 (1991), the ABA Committee concluded it does not. In pertinent part, the opinion provides:
While the Committee recognizes that persuasive policy arguments can be and have been made for extending the ambit of Model Rule 4.2 to cover some former corporate employers [sic], the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended. Especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one’s case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation.
Accordingly, it is the opinion of the Committee that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation’s lawyer.
The only Utah court to have carefully considered this issue followed the ABA’s interpretation of Model Rule 4.2 at a time when Utah Rules of Professional Conduct 4.2 mirrored the Model Rule. In Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), plaintiff’s counsel sought to interview 24 former bank tellers regarding bank practices during the time an employee allegedly fraudulently endorsed checks. The court held:
Today this court joins the ranks of those which have construed Rule 4.2 consistently with the position taken by the ABA Committee on Ethics and Professional Responsibility. Under this court’s rules of practice, Utah Rule of Professional Conduct 4.2 as well as ABA Model Rule 4.2 do not prohibit ex parte contact with the former employees of an organizational party that is represented by counsel.
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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).
4 Analysis: In 1991, the ABA’s Committee on Ethics and Professional Responsibility addressed whether Model Rule 4.2 limits contacts with former employees. In ABA Formal Opinion 91-359 (1991), the ABA Committee concluded it does not. In pertinent part, the opinion provides:
While the Committee recognizes that persuasive policy arguments can be and have been made for extending the ambit of Model Rule 4.2 to cover some former corporate employers [sic], the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended. Especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one’s case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation.
Accordingly, it is the opinion of the Committee that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation’s lawyer.
5 The only Utah court to have carefully considered this issue followed the ABA’s interpretation of Model Rule 4.2 at a time when Utah Rules of Professional Conduct 4.2 mirrored the Model Rule. In Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), plaintiff’s counsel sought to interview 24 former bank tellers regarding bank practices during the time an employee allegedly fraudulently endorsed checks. The court held:
Today this court joins the ranks of those which have construed Rule 4.2 consistently with the position taken by the ABA Committee on Ethics and Professional Responsibility. Under this court’s rules of practice, Utah Rule of Professional Conduct 4.2 as well as ABA Model Rule 4.2 do not prohibit ex parte contact with the former employees of an organizational party that is represented by counsel.
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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. (more…)

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.
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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.” (more…)

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. (more…)

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. (more…)

Ethics Advisory Opinion No. 115R

(Approved July 29, 1994)
I. Introduction

On May 20, 1993, the Board of Bar Commissioners of the Utah State Bar approved Ethics Advisory Opinion Committee No. 115, which found that Rule 4.2 of the Utah Rules of Professional Conduct does not prohibit a lawyer representing a private party from directly contacting a government official about a matter involving the attorney’s client, even though the government agency was known to be represented by counsel. Subsequent to the approval of the opinion, the Office of Attorney General of Utah, the Statewide Association of Public Attorneys of Utah, and an individual from the Office of Attorney General, Richard L. King (collectively, “Petitioners”) filed petitions for reconsideration of the opinion.

At the request of the Board of Bar Commissioners, the Ethics Advisory Opinion Committee has undertaken to review Opinion No. 115 and the legal and policy foundations that are involved with the issue. Upon full consideration of the Petitioners’ arguments, the Committee finds that the Petitioners have not raised any issues that justify the reversal or modification of its original opinion. Accordingly, the Committee affirms Opinion No. 115, as issued.
II. Opinion No. 115 Holding
The holding in Opinion No. 115 consists of two basic elements: (1) Because private parties have certain inherent and constitutional rights to approach their government officials, they should not be restricted from seeking direct communication with those officials merely because they have employed an attorney to represent them. The Committee found this result to be consistent with the language and intent of Rule 4.2. (2) However, if an attorney representing such a private party contacts a government official directly, he must inform that official if there is a pending dispute with the official’s agency involving the client and that he is representing the client in the dispute.1
III. Response to Petitioners’ Arguments
A. Comment to Rule 4.2. Petitioners claim that Opinion No. 115 mistakenly relies on the Comment to Rule 4.2, which states that the rule does not serve to prevent a party from directly contacting an official of a government agency about a pending controversy.2 Petitioners note that the comment refers to “party,” rather than the party’s attorney. But, any principal (i.e., “party”) is entitled to contact any other principal at any stage of a dispute.3 To restrict the use of “party” in this sentence to exclude the party’s representative renders the comment vacuous. There would be no point to the inclusion of the quoted comment in the context of Rule 4.2 unless it were designed to refer to the right of the party’s counsel to contact a governmental official.
It is all the more clear when Rule 4.2 is examined from a logical perspective. The basic rule identifies a class of lawyer communications that are proscribed. This class of communications (namely, certain lawyer-to-adverse-party communications) is then narrowed by the final clause, “unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Thus, Rule 4.2 has nothing to do with communications from one party to another, but rather deals only with communications from one lawyer to a non-lawyer. The comment to Rule 4.2 relates to these lawyer-to-party communications; petitioners’ interpretation of the use of the word “party” in the comment to Rule 4.2 completely ignores the context of the rule.
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