Yet a notable exception is New York, which recognizes the common interest privilege only where litigation is reasonably anticipated.27, The common interest privilege only applies where each separate client group has its own attorneys. Pa. 1997) (The interests of the parties need not be identical, and may even be adverse in some respects.). See, e.g., First Pac. To avoid potential waiver in most (if not all) jurisdictions, it is also a best practice to ensure that the attorneys in a common interest group handle all communications. First, when disputes arise between an insurer and an insured as to coverage of an underlying settlement or judgment in favor of a third party, the insurer often seeks discovery of materials shared between the insured and its counsel in the underlying case. 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). 261 0 obj <>stream Members are entitled to six clinical sessions per calendar year. 28. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 652719/2016, 2019 WL 1243089 (N.Y. Sup. 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. See Model Rules of Prof'l Conduct r. 4.3. you meet with the pro se party. The common interest attorney-client privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines. 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 by law to do so. But this element often takes center stage in disputes over common interest claims, and so it deserves some analysis here. When dealing with a represented party, care should be taken to respect a partys relationship with its attorney. 103, 113 (S.D.N.Y. United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir. 1960). Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. At that point, you need to cut off the conversation immediately until you get the lawyers permission to speak directly to the other party. 1996) (The privilege need not be limited to legal consultations between corporations in litigation situations . Lawyer in Buckhannon, WV serving the people of North Central WV. 1961). Advertisements 100 Rule 7.03. 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. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. Model Rule 4.3 expressly prohibits the lawyer from giving legal advice to an unrepresented person (other than the advice to get a lawyer). Under the Model Rule 4.2, Official Comment [7] does not use the term managerial authority, but rather prohibits communications with one who supervises, directs or regularly consults with the organizations lawyer concerning the matter. and the powers that be have thrown in the towel regarding representation of family law litigants, with do it yourself packages, Visual Scene itself cited decisions from various federal courts, including the U.S. Courts of Appeals for the Third, Seventh, Ninth, and D.C. Circuits.22 Similar cases can be found in many other courts across the country. 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. /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. The common interest doctrine is typically invoked in two related circumstances. When a lawyer is notified that another lawyer is entering a limited appearance in a matter, the lawyer must communicate with that lawyer regarding the issue, even where the lawyer has previously spoken directly with the pro se party. The court likewise found that the work product exchanged between the plaintiff and the defendant processor was protected from discovery. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. While the analysis for privilege and work-product protections is not identical in all respects, the result should be the same in this situation: So long as transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. 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. . 23. She is a member of the Ohio Supreme Courts Commission on Professionalism, a former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of the Ohio State Bar Associations Ethics Committee. . 2005) ([B]y virtue of assuming the functions and duties of [a] full-time employee, the contractor is a de facto employee of the company.); In re Flonase Antitrust Litig., 879 F. Supp. . Attend mediations or arbitrations where required. Va. 2008). 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. 187 (N.D. Ill. 1985). 71 0 obj <> endobj Ct. Civ. This article will also touch on some practice pointers that might help attorneys safeguard the common interest privilege and avoid potential waiver. As such, a quick refresher is in order. Opinion 492 agreed with the city attorneys position: [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply. 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. Rule 4.02dealing with a represented party. Subparagraph (b) prohibits a lawyer from contacting a person . 5. 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. Corporations should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it.). See, e.g., Allied Irish Banks, PLC v. Bank of Am., N.A., 252 F.R.D. But many lawyers might have only a tenuous grasp of what the common interest privilege is. The parties themselves should not directly communicate with each other and probably should not communicate directly with the other parties attorneys either. 4.4.Respect for Rights of Third Persons. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . 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). 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 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. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge . Viewed after the fact, however, inferences tend to be in favor the layman. 10-CV-2088, 2012 WL 760603 (S.D. 2. This site uses Akismet to reduce spam. 28 Education: By refusing to find waiver in these settings courts create an environment in which businesses can share more freely information that is relevant to their transactions. 572 (S.D.N.Y. 2008) ([T]he Third Circuit has not specifically adopted such a stringent approach.); In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. Serious drug or alcohol abusers are incapable of keeping their word, and certain attitudes, 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. Ct. App. This Article is published for general information, not to provide specific legal advice. ISBA Ethics Opinions on Communication with Represented Person Communicating with prospective client when that person is represented by another lawyer. . . This avoids the parties communicating directly if that is not a feasible option and it ensures that the legal matters are properly dealt with. 342, 348 (N.D. Ohio 1999) (rejected common interest privilege because only one party involved an attorney directly). Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. There is again a material difference, however. [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. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). 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. 331 (D. C. Bar AssnOct. 2005)(generally, no prior consentneeded from companys outside counsel in order fora lawyer tocommunicate with in-house counsel on thesubject of the representation);In re Grievance Proceeding, 2002 U.S. Dist. The trial court agreed, ruling that discovery was permissible. 8, 2012) (potential merging parties had common interest in determining whether their products would infringe). The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. The inability to direct another to do what the lawyer cannot was discussed in Texas State Bar Ethics Committee Opinion 600 (August 2010), which stated that a government attorney must not only limit his or her own communication with represented parties, but also communication of non-attorneys whom the lawyer directly supervised: [A] lawyer for a Texas governmental agency is not required to limit communications by the agencys enforcement officers who are not subject to the lawyers direct supervisory authority with regulated persons who are represented by lawyers. For example, in the Visual Scene case from Florida,19 a plaintiff distributor of glass sued three defendants because the glass was allegedly defective. If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. 1. Legal doctrine that impedes frank communication between buyers and sellers also sets the stage for more lawsuits, as buyers are more likely to be unpleasantly surprised by what they receive. The Texas Disciplinary Rules of Professional Conduct (Rules) differ from the ABA Model Rules (Model Rules) in material ways in this area. Id. 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 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). The suitable representative could be an attorney or a non-attorney who has the knowledge, skills and abilities to serve as a representative. Cite as RPC 4.2 History. It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently. (Adopted Aug. 7, 1985, eff. The common interest doctrine is distinct from the common interest privilege because in the former scenario there are not necessarily two separate groups of clients and their respective counsel working toward a common goal in the underlying case. . 4. Thus, a relatively low-level employee who regularly consults with the lawyer on the matter would be within the representation under the Model Rule, but not the Texas Rule. Along with familiarity with the basic elements of the attorney-client privilege, readers also know that courts will find that the attorney-client privilege has been waived under many circumstances. %%EOF hb```b`` b`a``d@ AfV8\ &0"utB63A E@$o. In-house counsel and opponents lawyer can communicate, says Va. opinion, Op. 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. . Perhaps most frequently, the privilege can be waived if the communication is shared with a third party, i.e., someone other than the attorney and the client. 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. Sys. . 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. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person. 29. . then you know the other party is represented in that matter. 574, 579 (N.D. Cal. (b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer . The joint defense privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counselall without allowing their common adversary (the plaintiff) to discover those communications. When encountering different courts discussions of the co-client, joint defense/plaintiff, and common interest privileges, attorneys might find that the nomenclature varies from one jurisdiction to another. or will be emailed to unrepresented parties following the hearing. (2) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer's client that the lawyer is disinterested. Depending on the importance of the communication in question, such waiver can result in great harm to a case. Parties who are represented on a limited representation basis are considered unrepresented for purposes of this Rule, unless written notice of the limited representation is provided to the attorney seeking to communicate with such party. As such, the precise contours of the common interest privilege are not fully settled across the country, and future cases will be needed to bring further clarity to this area of the law. She chairs that committees Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Rule 4.3: Dealing with Unrepresented Person. 14. 25. 13. 609, 634 (M.D. The messy nature of the real world requires courts to determine whether the legal nature of the communications is salient enough to trigger protection. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. The majority view appears to be that the legal nature of the communications must predominate over other interests, such as business or personal interests, in order for the privilege to apply.23 The minority view takes a more expansive view of the privilege, not requiring that the communications be predominately about legal interests.24. Solicitation and Other Prohibited Communications 101 Rule 7.04. 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. 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 . {{currentYear}} American Bar Association, all rights reserved. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. The more imminent that litigation appears, the more likely it might be that the attorneys advice is predominately legal in nature. 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. . Cavallaro v. United States, 153 F. Supp. Similarly, Texas State Bar Ethics Committee Opinion 488 (December 1992) involved a dispute (but not litigation) between a client and a finance company. There are some nuances, however, which Rule 4.2 and/or the ABA opinion point to. 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. 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. On any contested issues, no privilege could exist between the two parties. [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. See, e.g., Hunydee v. United States, 355 F.2d 183 (9th Cir. See, e.g., In re Regents of the Univ. 12. at 44243 (quoting United States v. Am. . Rules of Professional Conduct Rule 4.3: Dealing with unrepresented person Table of Contents Rule 4.3 Comment Downloads Contact Rule 4.3 Downloads Massachusetts Supreme Judicial Court Rules and Orders Contact Trial Court Law Libraries + Updates: Adopted March 26, 2015, effective July 1, 2015 See, e.g., Semsysco GmbH v. GlobalFoundries, Inc., No. 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. The disclaimer "I am only representing your spouse" should be made in virtually every communication to the unrepresented party and should advise the pro se party to hire his/her own attorney. Rule 4.02(c) defines who the client is when the lawyer is representing an organization, and covers material similar to that found in Official Comments to the Model Rules. 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). 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). When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Cal. Karen is a member of Thompson Hines business litigation group. 4.2 Communication Between Lawyer and Person Represented by Counsel. In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. E. Transmission Corp. PCB Contamination Ins. See, e.g., Regents, 101 F.3d at 1386 (The privilege need not be limited to legal consultations between corporations in litigation situations, however. n3kGz=[==B0FX'+tG,}/Hh8mW2p[AiAN#8$X?AKHI{!7, Can We Talk: Communicating with Unrepresented Persons. Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). 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. 6. 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. In this vein, some courts have recognized that third-party claimants are not entitled to communications exchanged among the insured, its counsel, and the insurer.32 Thus, the insurer is often not considered a third-party interloper that destroys the privilege. and selecting the appropriate Search Type (e.g., Case Number, Party Name, Business Name, Attorney Name, Attorney Bar Number, Judicial Officer, or Courtroom). 17. of Cal., 101 F.3d 1386, 1391 (Fed. . . L. Inst. 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. b. [9] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. 163, 171 (S.D.N.Y. Ins. Practitioners should simply take care to apply the terminology favored by the pertinent jurisdiction, while recognizing that other courts might use a somewhat different (and perhaps even inconsistent) vocabulary. To ensure accuracy of Rule 7.01. Committee held that it was improper for an attorney representing a party seeking a divorce to confer with an adverse party for the purpose of persuading the adverse party to . Because this privilege can mean the difference between producing a game-changing document and keeping that document out of an adversarys hands, mastering the elements and nuances of this particular privilege is worth the effort. hbbd```b``"IO L;"'$3\& `5@`vddbHc$?f`{ $:$j6Jqh8Pq $4 In Part I of this article, "When You Can Contact Others Who Are or Were Represented by Counsel" (NYLER April 2015), we explained the basic guidelines as to when a lawyer is allowed to directly contact another party who is represented by counsel under Rule 4.2 of the New York Rules of Professional Conduct (NYRPC)the No-Contact Rule. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. Comment | Table of Contents | Next Rule 2007). . Of course, there is often a fundamental question as to whether the defense attorney is representing just the insured or both the insured and the insurer. 4.4 Respect for Rights of Third Persons. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. communicate to counsel and parties of the cases set on the same trial calendars when they know . 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. 1965). Ct. App. Karen is a member of Thompson Hines business litigation group. 57, In re Blue Cross Blue Shield Antitrust Litig., MDL No. 8. This violated Rule 4.02, even though the party was a municipality. Attorney-client privilege. Such unrepresented parties are known as pro se litigants.. CBA's Rule 4.3 addresses "communication with an unrepresented person" and can be seen here: Rule 4.3 Communicating with an Unrepresented Person (a) In communicating 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. There, a labor organization employed an attorney to negotiate and resolve workplace issues. 764, 1990 U.S. Dist. 308, 311 (N.D. Cal. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 "generally does not prohibit" outside counsel from communicating ex parte with an opposing party's inside counsel about the subject of the representation. Restatement (Third) of the L. Governing Laws. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. 2. As noted earlier, New York has adopted a particularly narrow version of the common interest privilege by including the requirement of anticipated litigation, and other jurisdictions disagree about the meaning of common, among other issues. 34. 16. 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. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.); Swidler & Berlin v. United States, 524 U.S. 399, 40611 (1998) (holding that the attorney-client privilege survives even death and noting that the U.S. Supreme Court rejects using a balancing test in defining the contours of the privilege); Kenneth S. Broun et al., McCormick on Evidence 87, at 12122 (John W. Strong ed., 4th ed. & Tel. 32. 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. 9. Gulf and Cities were obviously not adversaries at the time of the disclosure. Mass. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. Rule 2-100 Communication With a Represented Party (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. 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. The Rules of Professional Conduct / NYSBA NY Rules of Professional . several similar examples from the Cali fornia Rules of Court that clarify the use of "counsel" by referring to "an unrepresented party." . Ret. Under Rule 4.2, a lawyer may not communicate with a person who is represented by counsel in a matter. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 308, 310 (N.D. Cal. Building upon the co-client privilege, the next extension of the privilege was to add not only more clients to the equation but also more attorneys. 2000) (the privilege applies to legal, factual, or strategic communications); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. Slaughterhouse Deregulation: A View of the Effects on Animals, Workers, Consumers, and the Environment, A Link in the Chain? 300, 310 (D.N.J. [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.
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