by Keith A. Call
Suppose you and your client believe an obstreperous opposing counsel is standing in the way of achieving a fair settlement. Your client tells you he wants to meet with the opposing party in a private client-to-client meeting, and he wants your guidance. What kind of advice can you ethically provide?
Rule 4.2(a) states, “[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.…” Utah R. Prof’l Conduct 4.2(a). Rule 8.4(a) deems it professional misconduct to attempt to violate the rules through the acts of another. See id. R. 8.4(a). On their face, these rules appear to be fairly restrictive on your ability to proceed.
Comment  to Rule 4.2 provides a little guidance. “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” Id. R. 4.2, cmt. 6. Beyond these statements in the rules and comments, there is little Utah authority on the issue. And cases and opinions from other states express a wide disparity of views on how far a lawyer may go in orchestrating client-to-client communications.
May a lawyer originate the idea and encourage the client to speak directly to a represented adverse party?
Even on this simple question, ethics committees around the country are split. Some decisions and opinions appear to conclude that it is unethical for a lawyer to encourage a client to speak directly to an adverse party. One opinion even seems to conclude that the lawyer must discourage the client from direct communications. See, e.g., Massachusetts Bar Op. 82-8 (1982) (stating that a lawyer should discourage the client from discussing settlement with the opposing party without the opposing lawyer’s consent). Other opinions conclude that it is okay to invite or encourage the client to speak directly with the other party. See, e.g., Oregon Ethics Op. 2005-147 (2005).
How much direction may the lawyer provide?
Some cases and opinions would preclude the lawyer from directing the content of client-to-client communications, and especially from “scripting” the conversation. Words, specific questions, or specific thoughts originating from the lawyer are often prohibited. And some opinions hold that the lawyer may not draft documents for the client to sign or deliver. See, e.g., California Comm. on Prof’l Responsibility & Conduct, Formal Ethics Op. 1993-131 (1993); Massachusetts Bar Op. 11-03 (2011).
A recent opinion from the American Bar Association would liberalize these standards. The opinion reasons that an overly stringent standard would “unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client.” ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Opinion 11-461 (2011).
Drawing liberally from the Restatement (Third) of the Law Governing Lawyers, the new ABA opinion would allow lawyers to give substantial guidance regarding a client’s substantive communications with the adverse party. See id.; Restatement (Third) of the Law Governing Lawyers § 99 cmt (k) (2000). For example, the lawyer could provide advice on the subjects to be addressed, issues to be raised, and strategies to be used. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 11-461. A lawyer may also review, redraft, and approve a letter or set of talking points prepared by the client. See id. At the client’s request and with certain conditions, the lawyer may even draft the basic terms of a proposed settlement agreement. See id.
Be conservative and play fair.
The bottom line for Utah lawyers is that the applicable standards remain unsettled. Utah’s Rule 4.2 differs substantially from the ABA model rule, and it is unclear whether our Office of Professional Conduct or our courts would follow the ABA opinion or some other view. Utah lawyers should therefore play it conservatively.
Whether directly applicable in Utah or not, the recent ABA opinion teaches an important principle. In advising a client about direct party communications, every lawyer should use common playground fairness. Avoid giving any advice that would subvert the purposes of Rule 4.2, which include lawyer overreaching, uncounseled disclosure of information by the opposing party, and lawyer interference with the attorney-client relationship. In other words, don’t coach your client to obtain disclosures of confidential information. Don’t coach your client to try to get admissions hurtful to your adversary. And don’t try to subvert the opposing party’s attorney-client relationship.
In areas like this one where the law is unsettled, a little dose of conservatism and a big dose of simple fairness will help you stay out of trouble in most situations.
by Keith A. Call