Members are entitled to six clinical sessions per calendar year. 1996) (The privilege need not be limited to legal consultations between corporations in litigation situations . In Opinion 472, the committee addressed the obligations of a lawyer under Model Rule 4.2 (Communicating with Persons Represented by Counsel) and Model Rule 4.3 (Dealing with Unrepresented Person) when a pro se litigant is receiving limited-scope representation, a form of practice permitted under Model Rule 1.2(c). In re Teleglobe Commcns Corp., 493 F.3d 345, 364 (3d Cir. The Rules of Professional Conduct / NYSBA NY Rules of Professional . Notably, in most jurisdictions, the parties do not need to reasonably anticipate litigation in order to qualify for the common interest privilege.26 Indeed, reasonable anticipation of litigation is usually an element of the work-product doctrine but not the attorney-client privilege. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 29. How does this common interest privilege relate to the common interest doctrine in the insurer/insured context? You can touch this. [c]. [2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyers client and those in which the persons interests are not in conflict with the clients. Rule 4.02(a) generally provides that, in representing a client, a lawyer shall neither communicate nor cause or encourage another to communicate about the subject of the representation with a person or entity the lawyer knows to be represented by another lawyer without consent of the other lawyer. When attorneys communicate with each other subject to a common interest defense privilege, they should also be in the habit of marking their communications as such. Pa. June 27, 1990) (rejecting application of common interest doctrine because retention of independent counsel signaled that the scope of the shared interest was uncertain), with Waste Mgmt., Inc. v. Intl Surplus Lines Ins. Co., 26 F.R.D. Certain issues, such as whether defense counsel is retained independently by the insurer,33 along with who paid counsel and whether the insurer reserved rights when providing a defense,34 can determine whether the insurer and the insured had a common interest, allowing the insurer discovery of the insureds litigation materials. The common interest doctrine is typically invoked in two related circumstances. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. 31. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is . There is no material difference between Texas Rule 4.02 and Model Rule 4.2 that would affect this ABA analysis, so ABA 06-443 could be persuasive authority in Texas. 11. When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship. ABA. 2001), affd, 284 F.3d 236 (1st Cir. Similarly, Texas State Bar Ethics Committee Opinion 488 (December 1992) involved a dispute (but not litigation) between a client and a finance company. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. {{currentYear}} American Bar Association, all rights reserved. Servs., was careful to require Plaintiff's attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel . Attorneys can also directly communicate with each other on behalf of their clients. 2. Mich. May 27, 2008) (discussing potential intellectual property issues, but not necessarily litigation). and transmitted in writing. But including such language in a communication can help support a claim of privilege because such claim will not appear to be merely revisionist, wishful thinking by a litigator. 2008). Whenever a lawyer communicates with a non-lawyer, there is the potential for misunderstanding and overreaching. Therefore, it is always imperative for a practitioner to look for precedent in the controlling jurisdiction and, failing that, look for persuasive case law or secondary authorities (like the Restatement) elsewhere. Knows is defined in Texas Rules as denot[ing] actual knowledge of the fact in question. Digest : It would be misleading for a lawyer to depose an unrepresented party to a lawsuit, who is not aware . Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. 2007-1 (N.Y. City Bar Assn Jan. 1, 2007, No DQ for contacting represented party on a different subject, district court says, Brief full of "gibberish" was actually written by client, but lawyer sanctioned with fees, double costs, "No contact" rule didn't bar interview with represented suspect, district court holds, ABA Opinion simplifies choice-of-law rules through various scenarios, Censure serves as reminder that zealous advocacy is no excuse for lack of candor toward tribunal, New York says presumption for sharing confidential information in joint representations does not apply retroactively, Ohio clarifies when out-of-state lawyers are permitted to conduct and defend depositions, Supreme Court Ultimately Declines to Decide Attorney-Client Privilege Case. It's time to renew your membership and keep access to free CLE, valuable publications and more. Such an agreement does not automatically grant privilege protections to any given communication, but it might help tip the scale in a judges mind for close calls. Networks, Inc. v. Atl. See Discovery Order No. App. Seealso Restatement (Third) of the Law Governing Lawyers 100 cmt. The claimant considered the offer too low, and the claimants lawyer directly contacted a council member to try to get a better deal. The suitable representative could be an attorney or a non-attorney who has the knowledge, skills and abilities to serve as a representative. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. . 17. 8. and selecting the appropriate Search Type (e.g., Case Number, Party Name, Business Name, Attorney Name, Attorney Bar Number, Judicial Officer, or Courtroom). 1965). 103, 113 (S.D.N.Y. [1] 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. of Ophthalmology, Inc., 106 F.R.D. Transmirra Prods. And, in any event, it is always wise to leave attorneys in charge of any privileged communications because attorneys are usually more careful with such communications. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. several similar examples from the Cali fornia Rules of Court that clarify the use of "counsel" by referring to "an unrepresented party." . "Party" can include organizations and their officers, directors and managing . Given that most pro se litigants are not lawyers and do not understand court rules or the workings of courtrooms and litigation matters, litigating a case against a pro se litigant can be difficult and costly. And the absence of such language is not necessarily fatal to a subsequent privilege claim. American Bar Association With experience, you will be able to identify the 40% or so of cases where such an idea (calling the other party) will not apply. If the procurement officer says, You know, we are getting close to being done on this contract, but before we can finalize it I am going to have to run it past legal, then that company remains unrepresented on that matter so far as you know. Instead, the common interest privilege is basically an expanded version of the attorney-client privilege. 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. & Tel. . In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered Yes, in an opinion that also covered someother issues of concern to in-house counsel. Just as attorneys and clients often state that their confidential communications are subject to the attorney-client privilegesometimes doing so in the subject line of an email or header of a letter or memorandumcommon interest counsel should take the same precautions. 300, 310 (D.N.J. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). . 26. 2000). This article will examine the nuts and bolts of the common interest privilege. During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. Va. 2008). 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. 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. As a technical matter, then, the common interest doctrine appears more reminiscent of the co-client scenario because the single attorney/firm (arguably) represents the interests of both the insured and the insurer against the common third-party adversary. Teleglobe, 493 F.3d at 366 ([C]ourts can afford to relax the degree to which clients interests must converge without worrying that their attorneys ability to represent them zealously and single-mindedly will suffer.); Regents, 101 F.3d at 139091 (substantially identical interest in protecting patent). All rights reserved. A lawyer may not make a communication prohibited by this Rule through the acts of another. Co., 642 F.2d 1285, 12991300 (D.C. Cir. 1987). 07-CV-10945, 2008 WL 2217682, at *3 (E.D. : Opinion # 18-03 Use of tracking software in emails or other electronic communications : Opinion # 18-01 Direct communication with government representatives : Opinion # 13-09 Regardless of the specific terminology used by a given court, it seems that all jurisdictions recognize each of these extensions of the attorney-client privilege. Emer. 57, In re Blue Cross Blue Shield Antitrust Litig., MDL No. The ABAs analysis is that the rule is to protect laymen, and in-house counsel needs no such protection. When and to what extent the insurers are entitled to such information varies from jurisdiction to jurisdiction. Rule 4 Transactions With Persons Other Than Clients. The rules regarding whether a lawyer can communicate with a person represented by counsel are straightforward: . In this way, each additional client of the same attorney is not considered a third party who can trigger waiver and thereby destroy the privilege. Cite as RPC 4.2 History. 2008) (noting that common interest privilege allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others). 1997) (accord). Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). But by focusing on the essential elements of the privilege, taking care to review case law in the pertinent jurisdiction, and employing some of the pointers in this article, a lawyer can make the most of the privilege and shield potentially damaging documents from production in litigation. 163, 171 (S.D.N.Y. 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. sophistication of the unrepresented party, as well as the setting in which the explanation occurs;1 If you communicate with the unpresented party, obtain the party's consent to continuing the conversation; You may recommend that the unrepresented party engage the services of their own lawyer; Do Not Give Legal Advice Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Model Rule 4.2 states: "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. Of course, a court is not bound to uphold a claim of privilege simply because the attorneys wrote subject to common interest privilege on a document. The trial court agreed, ruling that discovery was permissible. See, e.g., First Pac. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2, Rule 4.2: Communication with Person Represented by Counsel. The agreement can contain details about the nature of the common interest, including the legal questions that predominate, and call for coordination among the various clients and counsel. To illustrate, suppose you are in-house counsel working on a contract with a company that has in-house counsel, but you are dealing with someone in the Procurement Department who is not a lawyer. See, e.g., United States v. McPartlin, 595 F.2d 1321 (7th Cir. burt treated my family and myself with fairness and integrity. Consider memorializing an agreement among client groups and their counsel to prove that they share a common legal interest. During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. Id. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 1995) (reservation of rights creates a conflict of interest). The new Virginia opinion lines up with several other authorities in confirming thatcontacting in-house counsel can bean ethically-permitted option, even under the no contact rule. This article will also touch on some practice pointers that might help attorneys safeguard the common interest privilege and avoid potential waiver. Ethics, Professional Responsibility and More. {{currentYear}} American Bar Association, all rights reserved. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Ct. App. 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. The appellate court held that the plaintiff and the defendant processor shared a common interest in showing that the defendant manufacturer was liable for the plaintiffs damages (if any). Pa. 2012) (similar). lawyer's word should be his or her bond. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. This Article is published for general information, not to provide specific legal advice. Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.). The joint defense version of the attorney-client privilege applies during live litigation, as to both defendants in the same case and defendants in related, but separate, cases.7, Like the co-client version of the attorney-client privilege, the joint defense version appears to have originated in criminal law,8 though both the co-client and joint defense variants of privilege now apply in civil litigation as well.9, In addition, at least some courts recognize a joint plaintiff version of this extended privilege as well, which applies where plaintiffs are pursuing related litigation, whether in the same or different courts.10, Common interest privilege. Serious drug or alcohol abusers are incapable of keeping their word, and certain attitudes, For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13 (d). In In re News America Pub., Inc., supra, the defendant wrote a letter claiming he was no longer represented by any attorney in this matter and asked for a meeting with plaintiffs counsel. Negotiates injury settlements with both attorney represented claimants and unrepresented claimants. L. Inst. . On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . 1. Police Emps. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. to deal with the self-represented, and to deal with them efficiently, Other jurisdictions have arrived at conclusions similar tothe Virginia Ethics Committees. Restatement (Third) of the L. Governing Laws. of Cal., 101 F.3d 1386, 1391 (Fed. As such, a quick refresher is in order. Solicitation and Other Prohibited Communications 101 Rule 7.04. [1] 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. [3] The Rule applies even though the represented person initiates or consents to the communication. Karen is a member of Thompson Hines business litigation group. 308, 311 (N.D. Cal. 5-200 (Trial Conduct) 3.4 (Fairness to Opposing Party & Counsel) 5-220 (Suppression of Evidence) 5-310 . Subparagraphs (b)(d) to Rule 4.02 are not found in the Model Rules at all. See Rule 8.4 (a). 14. 261 0 obj <>stream 30. Cir. The meeting was held. 24. More importantly for purposes of this article, courts have also recognized the co-client or joint client privilege, which extends the attorney-client privilege to include additional parties without the risk of waiver.6 Where multiple clients retain the same attorney(s) to represent them, communications among the multiple clients and the shared attorney(s) remain insulated from discovery. This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with. 34. (a) In representing a client, a lawyer shall not communicate or cause another to 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 prior consent of the other lawyer or is authorized to do so by law. 32. Corporate Counsel Section, State Bar of Texas - Spring-II Edition 2013 Newsletter. . 6. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. It lays out three requirements for communicating with an unrepresented party: [A] lawyer shall not state or imply that the lawyer is disinterested. They had no common interest, and indeed, their interests were in conflicteach company wanted to get the best deal from the other company, and to the extent that one succeeded in its goal, the other suffered.); SCM Corp. v. Xerox Corp., 70 F.R.D. 1960). hb```b`` b`a``d@ AfV8\ &0"utB63A E@$o. This article will presume readers familiarity with those elements. Ct. App. Cal. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. Ultimately, the scope and content of communications with an unrepresented party, and the risk that such communications may be interpreted as legal advice by that party, will vary based on the sophistication, knowledge, and training of the unrepresented opponent. 4.3.Dealing with Unrepresented Person. In some circumstances, however, a party represented in one case may be deemed represented in another related case.Ftn4 Consent Exception: After an attorney requests the party's attorney to consent to the proposed contact, Therefore, the Committee concluded, the in-house lawyer does not need the protection of the no-contact rule. . 12. To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim. Cavallaro v. United States, 153 F. Supp. Can we talk? /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person/comment_on_rule_4_3, Rule 4.3: Dealing with Unrepresented Person. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver.28, Some courts have even suggested that communications qualify for common interest privilege protection only where the attorneys communicate with each other.29 If the clients directly communicate with each other, or if the attorneys for one client group communicate directly with the other client group, the privilege might not survive.30 However, at least one case has indicated that the common interest privilege can apply to communications between an attorney from one client group and a client represented by another attorney who is not actually a party to the communication.31. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. he never gave up, even with things seemed the darkest. The goal of this presentation is to highlight a number of standards that govern the decision-making process and to raise certain specific challenges that may arise, to assist counsel in striking the balance between zealously representing one's client and treating fairly the unrepresented person. 5. This requirement is not unique to the common interest version of the attorney-client privilege, as all attorney-client communications should be legal in nature to warrant protection from discovery. If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. 508, 52425 (D. Conn. 1976) (On that issue the parties were not commonly interested, but adverse, negotiating at arms length a business transaction between themselves.). To ensure accuracy of Per Official Comment 2 to Texas Rule 4.02, consent to direct contact may be implied from the circumstances. . Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation such that the insurer is entitled to the defense counsels materials. The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. Education: Conversely, some courts have recognized that, in a coverage dispute, insurers are entitled to discover at least some of the insureds counsels materials from the underlying case. Schachar v. Am. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. The courts reasoning in Visual Scene presumably would have extended equally to communications between the plaintiff and the defendant manufacturer regarding a common legal theory of liability against the defendant processor. Rule 4.2 states " [i]n 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." Under the Texas Rules, a lawyer cannot encourage another (which would include the client) to contact the other party without violating Rule 4.02(a). Likewise, the ABA's Formal Op. This is not surprising because these extensions of the attorney-client privilege are relatively new in the case law and the courts are still working through the fine distinctions. Sys. See, e.g., Allied Irish Banks, PLC v. Bank of Am., N.A., 252 F.R.D. Committee on Professional Ethics. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 generally does not prohibit outside counsel fromcommunicating ex parte with an opposing partysinside counsel about the subject of the representation. As for what types of legal interests qualify, compliance with particular laws is an easy example of a purely legal interest.25 Other situations, where both legal and commercial interests are intertwined, present closer calls. ABA Formal Ethics Opinion 06-443 (August 5, 2006) concludes that it is ethically proper for a lawyer to go around outside counsel to get to in-house counsel. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. Even in the current legal services market, where there is a trend for corporate clients to in-source legal work,many continue to rely on outside help for litigation and other matters, setting upa seeming choicefor an opponents counsel reach out toa companys inside lawyer, orcontact outside counsel. Co., 163 F.R.D. . n3kGz=[==B0FX'+tG,}/Hh8mW2p[AiAN#8$X?AKHI{!7, Can We Talk: Communicating with Unrepresented Persons. The plaintiff actually freely conceded [that] its interests in this litigation are opposed to those of the party with whom it claimed a mutual privilege. 19. To unpack the common interest privilege, it is useful to analyze each term, starting with the meaning of common., The case law varies regarding the precise meaning of common. At the most restrictive end of the spectrum, some cases indicate that a common interest means an identical interest.13 But other cases state that something less than identical interests can suffice to trigger the privilege.14 In fact, some courts at the most liberal end of the spectrum have recognized that the common interest privilege can apply even where the parties invoking the privilege have adverse interests in some respects.15, One oft-litigated scenario in this area is the situation of arms-length transactions, such as mergers and/or acquisitions (M&A). the attorney is positioned to take advantage of the unrepresented person in ways that would not be possible if the person were represented; helping the unrepresented person could frustrate legitimate interests of the lawyer's client; and contacts between the lawyer and the unrepresented person most often occur outside of the courthouse. Subparagraph (d) of Rule 4.02 makes it clear that a lawyer can discuss a matter with a represented party when the party is essentially seeking a second opinion. . 80, 2016 WL 3188989 (N.Y. June 9, 2016). Co-client and joint defense/plaintiff privileges. 7. of Cal., 101 F.3d 1386, 1391 (Fed. The court noted that Rule 4.02 is not determinative of whether counsel should be disqualified for trial, and that under other circumstances, some confirmation of termination (such as a copy of the letter of termination or confirmation from prior counsel) would be appropriate. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Kenneth S. Broun et al., McCormick on Evidence. %%EOF 23. Filing Requirements for Advertisements and Solicitation Communications 106 Rule 7.05. 18. E. Transmission Corp. PCB Contamination Ins. It lays out three requirements for communicating with an unrepresented party: 0 The no-contact rule is to protect uncounseled persons against being taken advantage of by opposing counsel and to safeguard the client-lawyer relationship from interference, the Committee said. In confirming thata lawyer is generally permitted to communicate with a corporate adversarys in-house counsel about a case in which the corporation has hired outsidecounsel, the Virginia State Bar Associations Standing Committeeon Legal Ethics referred to the purpose of Rule 4.2. Sometimes an issue arises just trying to figure out which rule applies. In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. homes for rent with bad credit in riverside, ca,