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By Joan C. Rogers
Attorneys who believe a client could benefit from communicating directly with a represented opponent may suggest that tactic, and even arm the client with talking points or a proposed settlement, so long as the lawyer's assistance does not result in overreaching, the ABA's ethics committee advised in an opinion dated Aug. 4 (ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 11-461, 8/4/11).
According to the opinion, an attorney who provides assistance of this sort should tell the client to encourage the other party to consult with counsel before taking on obligations, making admissions, or disclosing secrets. Any agreement that the attorney has drafted for the client to present to the opponent should include a warning that the other party should consult counsel before signing, the committee said.
Model Rule 4.2(a) prohibits a lawyer from communicating with a person the lawyer knows is represented by counsel, unless that person's counsel has consented or the communication is authorized by law or court order.
Comment  to the rule notes that “[a] lawyer may not make a prohibited communication through the acts of another.” It cites Model Rule 8.4(a), which makes it unethical for a lawyer to violate a professional conduct rule through the acts of another.
However, Comment  goes on to state: “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.”
This language, the committee said, raises the question of how far a lawyer may go in advising and assisting a client to communicate directly with a represented opponent without violating Rule 4.2 through the acts of the client.
After reviewing court decisions and ethics opinions on the subject (see box), the committee concluded that “without violating Rules 4.2 or 8.4(a), a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary.”
The committee agreed with Comment k to Section 99 of the Restatement (Third) of the Law Governing Lawyers (2000), that prohibiting lawyers from providing advice to clients who intend to communicate directly with opponents would unduly restrict the client's interest in obtaining important legal advice and the client's ability to communicate fully with the lawyer.
The opinion suggests that a lawyer's advice to a client may include, for example, the subjects or topics to be addressed, issues to be raised, and strategies to be used. Such advice may be given regardless of whether it is the lawyer or the client who comes up with the idea of contacting the other party directly, the committee said.
The opinion also indicates that a lawyer may advise a client about the content of the client's communications with the opponent. For example, the committee said, a lawyer is allowed to review, redraft, and approve a letter or set of talking points, and may go along with a client's request to draft a proposed settlement agreement for the client to present at the meeting.
While acknowledging authority that restricts a lawyer's drafting assistance to situations where the client originates the idea, the committee took the position that who initiates the first draft of a communication is not dispositive. Otherwise, only sophisticated clients would get the benefit of advice about formulating communications that clients are entitled to have with a represented opponent, the committee reasoned.
Instead, the committee said, “the line must be drawn on the basis of whether the lawyer's assistance is an attempt to circumvent the basic purpose of Rule 4.2,” which is to prevent clients from making uninformed or irrational decisions as a result of undue pressure from opposing counsel.
Prime examples of overreaching, the committee said, include helping the client obtain from the represented person, without the opportunity to consult counsel, an enforceable obligation, disclosure of confidences, or admissions against interest.
To prevent such overreaching, it said, the lawyer at a minimum must advise the client to encourage the represented opponent to consult with counsel before entering into an obligation, making an admission, or disclosing sensitive information.
An attorney who drafts a proposed agreement for the client to deliver to the represented opponent, the committee said, should include conspicuous language on the signature page that warns the adversary to consult with counsel before signing the agreement.
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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