Ethics Opinon 1978-3

SUBJECT: COMMUNICATION BY AN ATTORNEY WITH AN ADVERSE PARTY REPRESENTED BY COUNSEL IN AN UNRELATED MATTER

I
QUESTION PRESENTED

Pursuant to the mandate of Welfare and Institution Code Section 11475.1, the District Attorney's Family Support Division is required to handle child support enforcement cases. During the course of investigation of such cases it often becomes apparent that an absent parent is represented by appointed, or sometimes retained, counsel in another completely unrelated criminal matter being prosecuted by the District Attorney's Office. The child support matter involves paternity questions which require contact with the absent parent for his version of the case. Prior to contacting the absent parent, the Family Support Division attempts to contact the attorney representing the absent parent in the criminal matter to determine if he also represents that parent in the child support matter. Often the attorney in the unrelated criminal matter does not respond to the Support Division's phone calls and correspondence in this regard. In such cases, the Family Support Division proceeds with its investigation and possible legal action, civil or criminal, without ever contacting the absent parent. Unfortunately, this may result in the absent parent defending himself in a case that would have easily been resolved without litigation if contact had been made.

May the Family Support Division contact the absent parent directly pursuant to its duties under Welfare and Institutions Code Section 11475.1 when the absent parent is represented by counsel in an unrelated matter? Would contact by the Family Support Division be appropriate when the unrelated matter is fully concluded; i.e., there has been a conviction, and the time for appeal has expired?

II
SUMMARY

If the Family Support Division does not believe the absent parent to be represented by counsel in the child support matter, it may contact the absent parent if there is no discussion of the unrelated matter and no information is sought which would be relevant to the unrelated matter. Contact may be made with the absent parent under the same circumstances when the unrelated matter is fully concluded.

III
CANONS AND ETHICAL CONSIDERATIONS

Rule 7-103 of the California Rules of Professional Conduct provides in part:

A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel.

Canon 7 of the American Bar Association Code of Professional Responsibility provides that a lawyer should represent a client zealously within the bounds of the law. Ethical Consideration 7-18 provides:

EC 7-18. The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person. If one is not represented by counsel a lawyer representing another may have to deal directly with the unrepresented person; in such an instance, a lawyer should not undertake to give advice to the person who is attempting to represent himself, except that he may advise him to obtain a lawyer.

Disciplinary Rule 7-104 provides:

DR 7-104. Communicating with one of adverse interests.

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

IV
FORMAL OPINIONS

The question presented herein is novel on its facts and research has not disclosed any formal or informal American, State, County or City Bar Association opinion directly on point. However Formal Opinion No. 66 (March 19, 1932) of the American Bar Association is instructive. That opinion dealt with the question of whether or not it was improper for the defendant's attorney to communicate directly with the president of the plaintiff corporation concerning the name of a corporate officer most familiar with a subject to be covered by deposition when he had previously requested the information from the plaintiff's attorney and obtained no response. The opinion states:

The Canon [Canon 9] does not cover this case, because the Canon refers only to communication on the subject of the controversy and not to ascertaining the name of a witness whose testimony may be desired for the proper trial of the case.

The attorney for the defendant took the proper course when he first requested that the plaintiff's attorney furnish the name of an officer whose testimony he is entitled to have for the purpose of the deposition. If the attorney for the defendant, after promising to ascertain the name of the officer, fails or neglects to furnish the information, defendant's attorney is fully justified in applying directly to the president of the plaintiff corporation for the name of the required officer, so that he may call him as a witness. In writing directly to the president of the corporation, the attorney should explain why he finds it necessary to make the request directly instead of through plaintiff's attorney. A copy of the letter to the president should be sent to the plaintiff's attorney.

V
ANALYSIS

The prohibition against a lawyer communicating on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer arises from considerations of the proper functioning of an adversary system. In such a system, it is best for a person in need of legal advice or assistance to be represented by his own counsel.

However, if such a communication is on a matter totally unrelated to the subject matter in which the person is represented by counsel, it is not necessarily improper. It is clear that Ethical Consideration 7-18 and Disciplinary Rule 7-104 are limited to prohibitions against communications with a party "represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such party." (Emphasis added.) Those provisions are not aimed at prohibiting all communications on unrelated matters. And, indeed, the prohibition only applies to "the subject of the controversy." Formal Opinion No. 66, supra. Rule 7-104 of the California Rules of Professional Conduct should be read in light of this purpose and on its face only applies to "a subject of controversy."

Hence, under some circumstances, when certain safeguards are provided, it would not be improper for a lawyer to communicate directly with a party represented in a matter on a subject which is totally unrelated to the subject of controversy in which the party is represented. Under the facts presented, such a communication would serve the system of justice by possibly avoiding unnecessary litigation. It would not, therefore, be improper for a Family Support Division attorney to communicate with the absent parent if the following steps are taken:

1. The Family Support Division attempts to ascertain from the attorney in the unrelated matter if he represents the absent parent in the child support case;

2. The Family Support Division informs the attorney that it intends to communicate with his client on the unrelated matter unless he objects;

3. The Family Support Division attempts to ascertain from the absent parent if he is represented by counsel in the child support enforcement case;

4. In communicating with the absent parent, there is no discussion of the unrelated criminal matter or any facts which would be relevant to that matter;

5. The absent parent is treated as a person who is not represented by a lawyer and therefore given no advice other than the advice that he should secure counsel in the matter; and

6. A copy of any and all written correspondence to the absent parent and a written summary of the discussion with the absent parent is sent to the attorney representing the absent parent on the unrelated matter.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.