Lawyer Shouldn't Have Contacted Opponent Who Said She Was Going to Change Lawyers

By Joan C. Rogers  

A lawyer violated the prohibition against contacting a represented party by responding to an email from a litigation opponent who complained that her attorney was acting contrary to her wishes, the Washington Court of Appeals, First Division, held March 5 (Engstrom v. Goodman, Wash. Ct. App. 1st Div., No. 66557-0-I, 3/5/12).

Rather than responding to the opponent's email, the lawyer should have forwarded it to her attorney or asked the court to look into it, the court said in an opinion by Judge Mary Kay Becker. It declined to disturb a $3,000 sanction that the trial court imposed against the lawyer.

Email From Opponent

John Williams represented Denise Engstrom in a personal injury case against Rebecca Hardesten. After Engstrom prevailed in mandatory arbitration, Hardesten's insurance defense attorney filed a request for a trial de novo.

A few days later, Hardesten personally sent an email to Williams in which Hardesten said she did not agree to a new trial and did not wish to be represented by her attorney. The email invited Williams to contact her.

After Williams received the email, he prepared a declaration, which Hardesten signed, stating that Hardesten did not authorize her attorney to request a trial de novo. The declaration asserted that Hardesten was “currently seeking independent counsel” but had “not retained an attorney to date.”

Armed with that declaration and Williams's own declaration about receiving the email from Hardesten, Engstrom moved to strike Hardesten's request for a new trial.

Hardesten's attorney withdrew. Represented by new counsel, she moved to strike the two declarations as improperly obtained in violation of professional conduct rules. She also asked that sanctions be imposed on Williams.

Siding with Hardesten, the trial court struck the declarations, saying they were secured in violation of the ethical prohibition against communicating directly with a represented party. The court levied a $3,000 sanction on Williams for submitting the declarations and filing a frivolous motion. Williams withdrew a few days later. Through her new attorney, Engstrom appealed the rulings.

Violation of Rule 4.2

The court of appeals found that Williams violated Washington Rule of Professional Conduct 4.2, which prohibits lawyers from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer consents or the contact is authorized by law or court order.

It was irrelevant, the court said, that Hardesten initiated the communication by sending Williams an email. Comment [3] to Rule 4.2 expressly states, Becker noted, that the rule applies “even though the represented party initiates or consents to the communication,” and that in such a case the lawyer “must immediately terminate communication” with the represented party.

Instead of terminating contact with Hardesten, Williams got her to sign a declaration repeating the substance of her email message, the court pointed out.

The court rejected the argument that Williams could properly contact Hardesten because her message gave him reason to believe she was unrepresented.

The question, Becker said, is whether there is a reasonable basis for a lawyer to believe that a party may be represented; if so, the lawyer's duty is to determine whether the party is in fact represented. Williams did not fulfill this duty, the court said. As Hardesten's attorney had not withdrawn, Williams had a reasonable basis for believing that she was still represented, despite her statement that she did not wish to be represented by that attorney, it said.

Rather than taking matters into his own hands and contacting Hardesten directly, the court said, Williams could have simply forwarded the email to her attorney, or he could have submitted it to the court under a Washington statute that permits a judge to require proof of a lawyer's authority to appear as counsel when there are reasonable grounds for the court to inquire.

In a footnote, the court said that it was unpersuaded by In re Users Sys. Servs. Inc., 22 S.W.3d 331, 15 Law. Man. Prof. Conduct 302 (Tex. 1999), “because it is factually and procedurally distinguishable.”

(In that case, the Texas Supreme Court held that a law firm did not act unethically and should not be kicked out of a civil case for meeting with an opposing party who decided to switch sides and fired his lawyer. A lawyer generally is not ethically required to contact an interviewee's former lawyer to confirm the person's statement that the representation has been terminated before commencing the interview, the court declared. It disagreed with advice given in ABA Formal Ethics Op. 95-396 (1995) that “the communicating lawyer may not communicate with the person until the [other] lawyer has withdrawn her appearance.”)

Sanction Stands

The court decided that the trial court did not abuse its discretion by striking the two tainted declarations as a remedy for the violation of Rule 4.2.

Regarding the sanction imposed on Williams, the court said that issue was not properly before it because Williams himself did not appeal.

Becker added, however, that the court would not find an abuse of discretion even if the issue were properly before it. Once the two declarations were struck, Becker explained, Williams had no admissible evidence to support the motion to strike Hardesten's request for trial de novo. Thus, the motion to strike the request for a trial de novo was not well grounded in fact, and the trial court had discretion to sanction Williams for filing a baseless motion under Washington Rule of Civil Procedure 11, the court concluded.

Mark G. Olson, Everett, Wash., represented Engstrom. Debora A. Dunlap of McGaughey Bridges Dunlap, Bellevue, Wash., represented Hardesten.

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