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. 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. 96-03

(Approved April 26, 1996)
Issue:
What are the ethical obligations of an attorney who has negotiated an agreement with medical providers on behalf of a personal-injury client whose debts are subsequently discharged in bankruptcy?

Opinion: Absent dishonesty, fraud, deceit or misrepresentation, the attorney has no ethical obligation to honor personally the client’s agreements to pay medical providers out of a settlement or judgment. Disputes resulting from the failure of an attorney to make payment for services rendered by the medical providers should be treated as questions of substantive law, including state and bankruptcy law, and should be examined under traditional contract, agency, and bankruptcy doctrines rather than as questions of the ethical propriety of the attorney’s actions.1
Analysis: In a personal injury action, attorneys on behalf of their clients often negotiate agreements with medical providers for the care the client receives or has received in conjunction with the injury. Such agreements contractually obligate the client, but not the attorney, to pay medical providers for those services out of, or at the time of, any settlement or judgment. Prior to the settlement or judgment, the client may file a bankruptcy and may be discharged of certain of these medical-cost obligations.
The factual background of the present issue is not substantially different from that addressed by Utah Ethics Advisory Opinion No. 98.2In that opinion it was determined that imputation of an ethical obligation for an attorney’s failure to pay a third party for services could create the possibility that the Bar could initiate disciplinary actions against a lawyer for the mere failure to pay creditors. Such a possibility was determined to be beyond the scope of the Bar’s role in maintaining ethical standards among its members. This conclusion seems particularly valid when, as postulated in the present factual variation, the debts themselves may be legally discharged through a bankruptcy proceeding and when such a discharge may have been avoided through proper documentation by the medical provider.
Notwithstanding the foregoing, however, Rule of Professional Conduct 4.1 provides:
In the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.3(b) provides:
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.
Based on the foregoing rules, an attorney’s dishonesty, fraud, deceit or misrepresentation in conjunction with obtaining the medical services could subject the attorney to disciplinary action. For example, an attorney who (1) knows that his client intends subsequently to discharge medical debts in a bankruptcy proceeding, or intends to have his client seek a discharge of such debts in bankruptcy, (2) uses a form of documentation that the attorney knows will not withstand a bankruptcy, and (3) affirmatively states that the medical provider will be paid at settlement or judgment, will have committed an ethical violation.
However, in the absence of these independent ethical considerations, an attorney’s obligations for client-related medical expenses are to be considered as contract, agency, bankruptcy or other substantive issues rather than ethical issues.
Footnotes
1.This Opinion does not deal with agreements that expressly impose an obligation on the attorney or create a lien on the funds that are handled by the attorney. In those cases, the specific language of the agreement would control and might impose obligations on the attorney directly or as a trustee of the funds.
2.Ethics Adv. Op. 98, 1989 WL 509364 (Utah St. Bar 1989).