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
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?
Issued October 14, 2003
¶1 Issue: May a lawyer threaten to present criminal charges against an opposing party or witness during negotiations in a private civil matter?
¶2 Opinion: In the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, such a threat will be a violation of the Utah Rules of Professional Conduct if it constitutes “extortion,” if the lawyer does not have a reasonable belief that such charges are warranted by the law and the facts, or if it involves “abusive treatment” of a witness. (more…)
(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. (more…)