Ethics: Communicating with another ‘party’

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

Rule 4.2 of the Rules of Professional Conduct states:

“During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise by authorized by law.”

In our July 2007 column, we discussed what it meant to be represented in a “matter” for purposes of direct communication with a party under that rule.

In this column, we address other issues raised by Rule 4.2.

One issue is whether Rule 4.2 applies only to those who are “parties” to litigation or to a transaction. This was addressed by the Review Board in In re Silverman, 04 SH 120, M.R. 21413 (2007), in which an attorney representing a criminal defendant communicated directly with a witness he knew was represented by counsel.

In finding that the attorney violated Rule 4.2, the Review Board interpreted the word “party” to mean any “person” who was represented by counsel in a matter.

The board based its interpretation, in part, on the fact that corresponding ABA Model Rule 4.2, which had originally used the word “parties,” was amended in 1995 to use the word “persons,” and that the commentary to Model Rule 4.2 states that the rule “applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.”

The Illinois Supreme Court has relied on ABA commentary and interpretation of the ABA Model Rules when interpreting the Illinois Rules of Professional Conduct. Schwartz v. Cortelloni, 177 Ill.2d 166 (1997).

The Review Board recognized that the purpose of the rule, as stated in the commentary to Model Rule 4.2, is “protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.”

The board noted that other jurisdictions have similarly concluded that the protections of Rule 4.2 extend to represented persons even if they are not formally designated parties in a court proceeding or a transaction. United States v. Jamil, 546 F.Supp. 646 (E.D. N.Y. 1982); In re Box, 715 N.W.2d 758 (Iowa 2006); Monceret v. Board of Professional Responsibility, 29 S.W.3d 455 (Tenn. 2000); In re Illuzzi, 616 A.2d 233 (Vt. 1992).

The board acknowledged that at least one jurisdiction has held that an attorney for a criminal defendant could interview a witness who was a potential co-defendant because they were not both parties in the same matter. Grievance Comm. v. Simels, 48 F.3d 640 (2d Cir. 1995).

The board’s holding reflects the majority view regarding this issue.

Another issue under Rule 4.2 is whether an attorney who is a party to a case and is not represented by counsel can communicate directly with the adverse party.

This issue was addressed by the Illinois Supreme Court in In re Segall, 117 Ill.2d 1, 509 N.E.2d 988 (1987).

In Segal, an attorney sent letters directly to two credit card companies to which he was indebted offering to settle the indebtedness for the amounts represented by checks enclosed with the letters.

The attorney was unrepresented in those matters, but he was aware that the credit card companies were represented by counsel.

The Supreme Court rejected the attorney’s argument that those contacts were made on his own behalf as a litigant and thus were not made during the course of his representation of a client, holding that an attorney who is himself a party to the litigation represents himself when he contacts an opposing party.

The court concluded that an attorney who is himself a litigant may be disciplined under Rule 7-104(a)(1) (the substantially similar predecessor to current Rule 4.2) when he directly contacts an opposing party without permission from that party’s counsel.

A third issue is whether a lawyer can send a communication to a represented adverse party as long as the lawyer simultaneously sends the communication to that party’s attorney.

The Chicago Bar Association Committee on Professional Responsibility answered this question in the negative, in Ethics Opinion 07-08-14, which states that, absent consent by opposing counsel, Rule 4.2 does not authorize an attorney to communicate directly with an adverse party or its employees even when the communication is sent simultaneously to that party’s lawyer. Ethics opinions such as these are advisory, not binding legal precedent.

These authorities demonstrate that the safest approach to Rule 4.2 may be to apply it expansively, rather than trying to avoid its spirit by interpreting it narrowly.