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© 2014 Armstrong Teasdale
LLP
© 2013 Armstrong Teasdale
LLP
© 2014 Armstrong Teasdale
LLP
Drop the Phone and Drive:Limits on Lawyer Communications with Non-
Lawyers
Michael Downey
November 12, 2014
© 2014 Armstrong Teasdale
LLP
Anti-Contact Issues
Can you speak to another lawyer’s client?
Can another lawyer speak to your client without your
participation?
2
© 2014 Armstrong Teasdale
LLP
The Accident #1
3
W1
Joe
W2W3
Joe's Trucking
Plaintiff
© 2014 Armstrong Teasdale
LLP
Tom Cruise visits Oprah Show
4
© 2014 Armstrong Teasdale
LLP
"Represented Persons" – Rule 4-4.2
"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."
5
© 2014 Armstrong Teasdale
LLP
Elements of Anti-Contact Rule
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
• Lawyer has the consent of the other lawyer or
• Authorized by law or a court order.
6
© 2014 Armstrong Teasdale
LLP
The Accident #1
7
W1
Joe
W2W3
Joe's Trucking
Plaintiff
© 2014 Armstrong Teasdale
LLP
Unrepresented Persons (Witnesses) – Rule
4-4.3
No (falsely) implying disinterested.
• 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.
Must clarify role when misunderstood.
• When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
No giving legal advice if conflicting interests.
• 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.
8
© 2014 Armstrong Teasdale
LLP
Duty of Candor – Rule 4-4.1
In the course of representing a client a lawyer shall
not knowingly:
a) make a false statement of material fact or law to
a third person; or
b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
9
© 2014 Armstrong Teasdale
LLP
No Fraud or Misrepresentations –
Rule 4-8.4(c)
It is professional misconduct for a lawyer to:
a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
b) commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects;
c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . .
10
© 2014 Armstrong Teasdale
LLP
The Accident #2 – Corporate Context
11
W1
TD
W2W3
Nationwide Trucking Co.
NTCDriver
Plaintiff
© 2014 Armstrong Teasdale
LLP
Corporate Employees (Constituents)
[7] In the case of a represented organization, this
Rule prohibits communications with a constituent of
the organization who supervises, directs or regularly
consults with the organization's lawyer concerning
the matter or has authority to obligate the
organization with respect to the matter or whose act
or omission in connection with the matter may be
imputed to the organization for purposes of civil or
criminal liability.
Model Rule 4-4.2 cmt.
12
© 2014 Armstrong Teasdale
LLP
Contacts with NTC Driver?
If the organization is represented, then anti-contact
rule covers
• Constituent of the organization "who supervises,
directs, or regularly consults with the organization's
lawyer concerning the matter"
• Constituent who have "authority to obligate the
organization with respect to the matter"
• Constituent "whose act or omission in connection
with the matter may be imputed to the organization
for purposes of civil or criminal liability
13
© 2014 Armstrong Teasdale
LLP
The Accident #2 – Corporate Context
14
W1
TD
W2W3
Nationwide Trucking Co.
NTCDriver
Plaintiff
© 2014 Armstrong Teasdale
LLP
The Accident #3 – NTC Witnesses
15
NTC CEO
TD
NTC EE
W3
Nationwide Trucking Co.
NTCDriver
Plaintiff
© 2014 Armstrong Teasdale
LLP
Contacts with NTC Driver?
If the organization is represented, then anti-contact
rule covers
• Constituent of the organization "who supervises,
directs, or regularly consults with the organization's
lawyer concerning the matter"
• Constituent who have "authority to obligate the
organization with respect to the matter"
• Constituent "whose act or omission in connection
with the matter may be imputed to the organization
for purposes of civil or criminal liability
16
© 2014 Armstrong Teasdale
LLP
The Accident #2 – NTC Witnesses
17
NTC CEO
TD
NTC EE
W3
Nationwide Trucking Co.
NTCDriver
Plaintiff
© 2014 Armstrong Teasdale
LLP
But Beware . . .
"[7] 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. See Rule 4-4.4."
18
© 2014 Armstrong Teasdale
LLP
The Accident #2 – Former
Constituent
19
W1
TD
W2W3
Nationwide Trucking Co.
Ex-NTC
Driver
Plaintiff
© 2014 Armstrong Teasdale
LLP
No Coverage for Former
Constituents
"[7] . . . Consent of the organization's lawyer is not
required for communication with a former
constituent. . . . In communicating with a . . .
constituent of an organization, a lawyer must not use
methods of obtaining evidence that violate the legal
rights of the organization. See Rule 4-4.4 "
20
© 2014 Armstrong Teasdale
LLP
The Accident #2 – Constituent with
Separate Counsel
21
W1
TD
W2W3
Nationwide Trucking Co.
NTCDriver
Plaintiff
© 2014 Armstrong Teasdale
LLP
Separate Counsel
"If a constituent of the organization is represented in
the matter by his or her own counsel, the consent by
that counsel to a communication will be sufficient for
purposes of this Rule. Compare Rule 4-3.4(f)."
22
© 2014 Armstrong Teasdale
LLP
Points to Emphasize
Protection only about matter of representation
Anti-Contact Rule does not turn on
• Method of communication
− Prevents communication in person, by email,
telephone, etc.
• Who initiates communication
− "Plaintiff called me" is not an excuse
23
© 2014 Armstrong Teasdale
LLP
Client May Speak to Covered Person
"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." Rule 4-4.2 cmt
[4]
24
© 2014 Armstrong Teasdale
LLP
Communication with In-House
Counsel
ABA Formal Opinion 06-443 indicates such
communications are permitted
25
© 2014 Armstrong Teasdale
LLP
The “Final Exam”
You are corporate counsel for Better Technologies
Company (BTC)
BTC is negotiating new contracts with Supplier
At the first meeting, BTC has the following persons on its
team:
1) BTC attorney
2) BTC executive, a law school graduate no longer licensed
3) BTC executive, who has never been to law school but is
quite “clever”
Supplier’s team consists of Supplier’s non-lawyer COO,
Supplier’s sales manager, and Supplier’s attorney
Who can contact whom directly after the meeting?26
© 2014 Armstrong Teasdale
LLP
Thank You
Michael Downey
Armstrong Teasdale LLP
314.342.8072 direct
Or www.MissouriEthicsLawyer.com
Webinar CLE Code: MD1112
27