Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

When Does Helping Your Client Become Prohibited Indirect Communication with a Represented Party in Violation of Rule 2-100?

This "Ethics in Brief" discusses the existing tension between California’s Rules of Professional Conduct [CRPC] 2-100 (A) prohibition of indirect communications with a party represented by another lawyer and permitted party-to-party communications. 

CRPC 2-100 (A) entitled “Communication with a Represented Party” provides:   

“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 discussion following CRPC 2-100 states, "Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation and nothing prevents [lawyers] from advising the client that such communication can be made.”

In San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, at 1234-1237 [Contreras] the court, with seeming approval, quoted from California State Bar Formal Opinion No. 1993-131 (1993) stating:

“[A]ttorneys ‘need not discourage clients from direct communication with one another’ and ‘[i]nformation obtained by a client from an opposing party represented by counsel where there has been no prohibited direct or indirect communication under rule 2-100 may properly be communicated by the client to the attorney and used by the attorney as is otherwise appropriate.[¶] …[¶] [On the other hand,] [w]hen the content of the communication to be had with the opposing party originates with or is directed by the attorney, [the communication] is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence, or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney....

[¶] An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party words or thoughts originating with the attorney.’ In general, ‘counsel should be guided by the overriding purpose of rule 2-100, which is to prohibit one side to a dispute from obtaining an unfair advantage over the other side as a result of having ex-parte access to a represented party.’ (Opn. No. 1993-131.)’ (Contreras, supra, 213 Cal.App.4th 1212, at 1234-1235.)

The Contreras Court also reviewed ABA Opinion No. 11-461 which interprets rule 2-100’s ABA counterpart Model Rule 4.2 which it found takes a “more liberal approach” as to where the line must be drawn.  ABA Opinion no. 11-461 allows attorneys to actively counsel their clients about planned communications with represented parties and to draft some documents for use in the communications. (Contreras, supra, at 1235.)

Nevertheless, after reviewing several cases from other jurisdictions which precluded a lawyer from preparing legally binding documents such as an affidavit or drafting a release of liability for the client to present to a party, the Contreras Court observed:

“These decisions are consistent with the general principle that attorneys should not advise their clients regarding party communications in a manner that violated the underlying purpose of the rule:  preparing legally binding documents for an opposing party to sign takes advantage of the fact that the party is being contacted without knowledge, consent or presence of her legal representative.” (Contreras, 213 Cal.App.4th at 1236.)  

Since the Contreras court found there was no evidence that the disputed contacts were at the behest of counsel or that counsel had coached the individual plaintiffs in any way except to inform them they had the right to engage in such communications, its discussion may be characterized as non-binding dictim, leaving the lawyer without a “bright line” test in how to comply with CRPC 2-100, and needing to continue to exercise particular caution in this area.

-- Richard D. Hendlin 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**