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.

Contacting Other Parties Represented by Counsel: Can You, or Can’t You?

To resolve heated litigation disputes or push a deal through sticky issues, clients may ask whether it is possible to “get the other side’s lawyer out of the way.”  Clients may see the primary sticking points as lawyer-driven, rather than client-driven, and may want to contact the other side directly to pursue a resolution.

For example, clients may ask their lawyer to directly contact the opposing party’s manager, director, key business person or in-house counsel about the dispute.  Or, clients may ask whether they can “get all the outside lawyers out of the way,” and contact the opposing party directly. 

Direct business-to-business negotiations can resolve a complicated dispute quickly, so long as level heads are committed to resolution.  No California legal ethics rule expressly prohibits a non-lawyer client from contacting another party directly, although clients cannot be used as conduits for indirect prohibited contact from lawyers.  Put another way, if the person contacting the other party is a lawyer, the California Rules of Professional Conduct come into play.  And, if the contact is initiated by a client, the content of that communication cannot originate with or be directed by a lawyer.  See California State Bar Formal Opinion No. 1993–131.

California Rule of Professional Conduct 2-100(A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer.  Rule 2-100 defines “party” broadly.  SeeRule 2-100(B)(1)-(2).  “Party” can include organizations and their officers, directors and managing agents, and potentially other employees, as well as potentially in-house counsel.  Id.Snider v. Superior Court (2003) 113 Cal. App. 4th 1187, 1207-09.  However, Rule 2-100 “must be interpreted narrowly because ‘a rule whose violation could result in disqualification and possible disciplinary action should be narrowly construed when it impinges upon a lawyer's duty of zealous representation.’  Id., citing Continental Ins. Co. v. Superior Court (1995) 32 Cal. App. 4th 94, 119.  Actual knowledge that the party is represented by a lawyer is required for a violation to be found.  Snidersupra, at 1192.  However, the party need not be the “opposing” party.  Hernandez v. Vitamin Shoppe (2009) 174 Cal. App. 4th 1441.  The contact must be about the “matter” where the opposing party is represented.  Rule 2-100(A).

Thus, for example, a lawyer might know another party in a contract negotiation is represented by outside counsel.  If so, applying Rule 2-100(A), the lawyer cannot contact the other party’s owner directly in order to discuss that contract negotiation unless the other party’s outside counsel consents.  Copying the other party’s counsel on an email initiating direct contact does not necessarily resolve the issue, although consent to contact can be implied from a lack of objection.  California State Bar Formal Opinion No. 2011–181; see Association of the Bar of the City of New York Opinion 2009-1 (lawyer risks violating rule if lawyer copies opposing party and opposing counsel on an email).

Rule 2-100 is not a blanket prohibition against contacting the other party’s employees.  Id. at 1202.  In Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal. App. 3d 131, 140, the Court ruled that “[R]ule 2–100 permits opposing counsel to initiate ex parte contacts with ... present employees (other than officers, directors or managing agents) who are not separately represented, so long as the communication does not involve the employee’s act or failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.”

While American Bar Association (“ABA”) Model Rule 4.2 regarding contact of represented persons has been interpreted as not necessarily precluding contact with in-house counsel, California has not adopted Model Rule 4.2.  See Formal Opinion 06-443, American Bar Association Standing Committee on Ethics and Professional Responsibility (Aug. 5, 2006) (finding violation of Rule 4.2 would occur only if the in-house counsel is, in fact, a party in the matter and is represented by either the same counsel as the organization or his or her own independent counsel); accord In re Grievance Proceeding, 2002 WL 31106389, at *3 (D. Conn. 2002) (Rule 4.2 not violated by communications with inside general counsel of opposing party; general counsel does not fall within plain meaning of “party” for purposes of Rule 4.2).

Thus, in California, where the lawyer is asked by his or her client to “get the other side’s lawyer out of the way” in order to resolve a dispute, the lawyer would be advised either to carefully study Rule 2-100, Snider and Triple A to be sure no violations will occur, to communicate with opposing counsel regarding the planned contact and obtain his or her consent, or to politely decline.  An employee of the opposing party who is in a position to resolve the dispute could be an officer, director or managing agent with whom contact is prohibited.

-- Erin Gibson

**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.**