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Discussing Your Client’s Case Discussing Your Client’s Case

Discussing Your Client’s Case - PowerPoint Presentation

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Discussing Your Client’s Case - PPT Presentation

With Third Parties    Interacting with third parties in the course of representation of a client a n examination of Rules 42 and 43 of the Rules of Professional Conduct by Lara Butler Butler Sevier Hinsley amp Reid PLLC ID: 156817

lawyer person client communication person lawyer communication client represented counsel unrepresented rule party parties comment communicate law rpc matter

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Slide1

Discussing Your Client’s Case With Third Parties

  

Interacting with third parties in the course of representation of a client:

a

n examination of Rules 4.2 and 4.3 of the Rules of Professional Conduct

by

Lara Butler

Butler, Sevier, Hinsley & Reid, PLLC

lbutler@bshrlaw.com

901.578.8888Slide2

Interacting with other parties is part of the regular routine of every attorney.

whether through litigation or transactional work on behalf of a client, attorneys communicate with

:

the client

potential witnesses

family, work colleagues or friends of a client

opposing parties who are not represented by counsel

. Slide3

The Digital Age of Communication

text message

email

message

social

networking sites (Facebook, LinkedIn, twitter)

In the digital age,

interactions between a lawyer and third parties occur

not only in person, in writing or on the phone. There are opportunities for communication in multiple formats:Slide4

Technological Advances

These technological advances have improved the methods and ease with which we can communicate. As our ability to communicate continues to evolve, it is important for attorneys to have a thorough understanding of the ethical prohibitions on contacting represented parties, and the rules concerning communication to those without the benefit of legal representation.Slide5

Rules of Professional Conduct

that govern communication with third parties

4.2

: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

4.3

: DEALING WITH AN UNREPRESENTED PERSONSlide6

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

“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 or is authorized to do so by law or a court order.”Slide7

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

Purpose

(See Comment 1)

To protect a person who has chosen to be represented by a lawyer in a matter against

possible overreaching by other lawyers who are participating in the matter,

interference by those lawyers with the client-lawyer relationship, and

the uncounseled disclosure of information relating to the representation.Slide8

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

What does it mean to communicate in the context of RPC 4.2

?

Communication:

The

expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's

perception.

Black's Law Dictionary (9th ed. 2009

).

A lawyer cannot communicate through

a third party such as a private investigator, paralegal, legal assistant, or even through your own client, in a manner that is prohibited by the RPC:comment [4] to RPC 4.2:“A lawyer may not make a communication prohibited by this Rule through the acts of another.” And makes reference to RPC 8.4:RPC 8.4(a): “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . .”Slide9

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

Hypothetical Situation: your

client is in your

office

meeting with you, and pulls out his

cell phone to text or call his

wife,

so

she can

answer a question about the parties’ draft tax return. Spouse is represented by counsel.

See comment [4]: “ . . . 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.”RPC 4.2., read with the comment, an attorney may advise a client concerning communication with his or her spouse However, 4.2 and 8.4 clearly prohibit directing your client to communicate with his or her spouse, when that spouse is the opposing party represented by counsel. Slide10

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

To what types of communication or topics of communication does RPC 4.2 apply?

The subject of the representation

It does not apply to matters not related to the representation.

See comment 4:

“This

Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter, such as additional or different unlawful conduct not within the subject matter of the representation. . .”Slide11

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

Typical subjects of family law representation:

Income – opportunities for extra income, increases in income, decreases in income

Employment – history, promotions, job changes, firings

Real estate – the marital residence, the real estate market as it relates to your efforts to buy and sell property

Children – where they go to school, how they are doing in school, whether they are changing schools, discipline issues, extracurricular activities, religious education, third persons that a parent allows around a child

Personal property – buying/selling, acquisition of

Residence – potential relocation from an area

Socializing – probably only an issue if there are allegations of adultery, or that a paramour has been brought around a third

partySlide12

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

If most

day-to-day matters about which you would communicate with anyone are the “subject of the representation” when it comes to divorce litigation, what is a safe conversation you could have with the opposing party or a third party in the litigation, who is represented by counsel?Slide13

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

To whom does this rule apply?

any person who is represented by counsel concerning the matter to which the communication relates.

(

see

Comment [2

])

When does the rule apply?

Always: Even when the represented

person initiates or consents to the

communication a lawyer must uphold rule 4.2. “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])Slide14

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

How does a lawyer know if a person is represented

by counsel?

See

RPC

1.0(f): "Knowingly," "known," or "knows" denotes actual awareness of the fact in question. A person's knowledge may be inferred from circumstances.

This is important to consider when receiving unsolicited text messages, email messages or other electronic communication from individuals who are not readily identifiable. Be certain about

the identity of the person with whom you are

communicating before responding, as according to the rule

knowledge can be inferred from the

circumstances.  Slide15

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL

Consenting to communication with a represented

party

RPC

4.2 prohibits communication with a represented party “

unless the lawyer has the consent of the other lawyer . . .”

When could you, or when should you, consent to an opposing attorney communicating directly with your client?

What constitutes “consent” – i.e. what must you have from the attorney representing a person in the litigation to know that you have the consent necessary to ensure you are not violating Rule 4.2?Slide16

4.3: DEALING WITH AN UNREPRESENTED

PERSON

“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. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are, or have a reasonable possibility of being, in conflict with the interests of the client.”Slide17

4.3: DEALING WITH AN

UNREPRESENTED PERSON

Identifying your interests

. Always be clear in words, both written and spoken, and your actions, about the person you represent and the nature of the

lawsuit: “An

unrepresented person,

particularly one not experienced in dealing with legal matters,

might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client

.” (Comment

[1

]) In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person.Slide18

4.3: DEALING WITH AN UNREPRESENTED PERSON

There

are two situations that the comments to the rule distinguish:

unrepresented

persons whose interests may be adverse to those of the lawyer's

client.

In this situation the

lawyer is prohibited from the giving of any advice, apart from the advice to obtain

counsel

Unrepresented persons whose interests

are not in conflict with the client's. Slide19

4.3: DEALING WITH AN UNREPRESENTED PERSON

The importance of assessing the unrepresented

person

Whether

a lawyer is giving impermissible advice may depend on

the experience and sophistication of the unrepresented person,

as well as the setting in which the behavior and comments

occur

(See Comment [2])Slide20

4.3: DEALING WITH AN UNREPRESENTED PERSON

Negotiating

settlement

with

pro

s

e parties (

see

Comment [2])

4.2 does

not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute when the opposing party does not have an attorney. The lawyer must explain to the party explained that the lawyer represents an adverse party and is not representing the person before engaging in any communication in an effort to settle a dispute. Once this has been accomplished a lawyer may:inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature, and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.Slide21

4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS

“(

a) In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person. . .

.”Slide22

4.1: TRUTHFULNESS IN STATEMENTS

TO

OTHERS

Lawyers representing family law clients frequently communicate with:

family members of the client

friends of the client

the client’s employer or work colleagues

medical or psychological professionals treating or evaluating the client, or the children of a client

third party witnesses

Sometimes the lawyer initiates these opportunities for communication, after the client has consented to the lawyer communicating with a third person.

At other times these opportunities for communication arise when a third person initiates the call / email / message at the direction of the client or voluntarily. Slide23

RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PERSONS

(a) In representing a client, a lawyer shall not: (1) use means that

have no

substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person; . . . .Slide24

RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PERSONS

This rule must be considered by attorneys, and made clear to support staff, before

Noticing depositions of third parties

Contacting third parties by phone, email or mail to gather information related to your client’s case

Issuing subpoenas for hearings

Keeping witnesses advised about the rescheduling or cancellation of matters Slide25

Lara ButlerButler, Sevier, Hinsley & Reid PLLC

Lara received her undergraduate degree from Rhodes College in 1990.  In 1993, she received her J.D degree from the University of Memphis, where she was a member of the Law Review and the recipient of the American Jurisprudence Award in Contracts I.  While in law school, she authored 

Cowe by Cowe v. Forum Group, inc.: Wrongful Life and the Dilemma of Comparing Impaired Existence with Nonexistence

.  22:4 Memphis State University Law Review.

Lara

concentrates in the area of Domestic Relations, including divorce, child custody, visitation, child support, juvenile court matters and adoptions. Lara is also a Tennessee Rule 31 Listed Family

Mediator.