. The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. Sys. To unpack the common interest privilege, it is useful to analyze each term, starting with the meaning of common., The case law varies regarding the precise meaning of common. At the most restrictive end of the spectrum, some cases indicate that a common interest means an identical interest.13 But other cases state that something less than identical interests can suffice to trigger the privilege.14 In fact, some courts at the most liberal end of the spectrum have recognized that the common interest privilege can apply even where the parties invoking the privilege have adverse interests in some respects.15, One oft-litigated scenario in this area is the situation of arms-length transactions, such as mergers and/or acquisitions (M&A). When and to what extent the insurers are entitled to such information varies from jurisdiction to jurisdiction. The defendant processor attempted to shield some of its communications with the plaintiff against discovery by one of the defendant manufacturers. Communications Exempt from Filing Requirements 108 Rule 7.06. Depending on the importance of the communication in question, such waiver can result in great harm to a case. As noted earlier, New York has adopted a particularly narrow version of the common interest privilege by including the requirement of anticipated litigation, and other jurisdictions disagree about the meaning of common, among other issues. Accordingly, the common interest doctrine can be invoked both offensively (as a sword by the insurer against the insured) and defensively (as a shield by the insurer and the insured jointly against the third-party claimant). of Cal., 101 F.3d 1386, 1391 (Fed. The new Virginia opinion lines up with several other authorities in confirming thatcontacting in-house counsel can bean ethically-permitted option, even under the no contact rule. 18. On any contested issues, no privilege could exist between the two parties. Texas Rule 4.02(c) prohibits contact with employees with managerial responsibility regarding the matter of representation and employees whose acts or omissions would make the company vicariously liable. Thus a lawyer in another state cannot direct a paralegal or secretary to contact a represented party about the subject of the representation, but can encourage a client do so. 2007-1 (N.Y. City Bar Assn Jan. 1, 2007, No DQ for contacting represented party on a different subject, district court says, Brief full of "gibberish" was actually written by client, but lawyer sanctioned with fees, double costs, "No contact" rule didn't bar interview with represented suspect, district court holds, ABA Opinion simplifies choice-of-law rules through various scenarios, Censure serves as reminder that zealous advocacy is no excuse for lack of candor toward tribunal, New York says presumption for sharing confidential information in joint representations does not apply retroactively, Ohio clarifies when out-of-state lawyers are permitted to conduct and defend depositions, Supreme Court Ultimately Declines to Decide Attorney-Client Privilege Case. Solicitation and Other Prohibited Communications 101 Rule 7.04. 2008). Rule 4.02(a) generally provides that, in representing a client, a lawyer shall neither communicate nor cause or encourage another to communicate about the subject of the representation with a person or entity the lawyer knows to be represented by another lawyer without consent of the other lawyer. 10-CV-2088, 2012 WL 760603 (S.D. Perhaps most frequently, the privilege can be waived if the communication is shared with a third party, i.e., someone other than the attorney and the client. In Opinion 472, the committee addressed the obligations of a lawyer under Model Rule 4.2 (Communicating with Persons Represented by Counsel) and Model Rule 4.3 (Dealing with Unrepresented Person) when a pro se litigant is receiving limited-scope representation, a form of practice permitted under Model Rule 1.2(c). 06-443 (Aug. 5, 2006), says that Model Rule 4.2 "generally does not prohibit" outside counsel from communicating ex parte with an opposing party's inside counsel about the subject of the representation. /content/aba-cms-dotorg/en/groups/tort_trial_insurance_practice/publications/the_brief/2020-21/summer/common-interest-privilege-what-exactly-is-it-when-does-it-apply, Tort Trial and Insurance Practice Section, Summer 2021 | The Duty to Protect from Third-Party Harm. 32. 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. It provides that "a lawyer shall not communicate about the subject of a representation with a party" who the lawyer "knows to be represented by another lawyer in the matter" unless the lawyer has the consent of the other lawyer or the contact is "authorized to do so by law." . draconian supervision of sole and small firm practitioners, and in where In fact, defendant had not terminated his representation at the time of the letter, and defendants counsel was not notified of the meeting until months later when the letter was produced in response to a subpoena. Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 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. To extend the common interests privilege to parties aligned on opposite sides of the litigation for another purpose is not inconsistent with any policy underlying the attorney-client privilege and merely facilitates representation of the sharing parties by their respective counsel.20 Insofar as the plaintiff established that it suffered damages, both it and the defendant processor shared an interest in proving that the defendant manufacturer was liable for some (if not all) of the damages. 2007) (noting that members of the community of interest must share at least a substantially similar legal interest). Education: Attorney Sondra Harris notes: "It is important not to overreach or try to make an agreement 'too good' when . Jan. 1, 1986. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. In sum, the common interest attorney-client privilege and the common interest doctrine can overlap in litigation and are in a sense related, but practitioners should be sure to avoid conflating these separate lines of cases. Treatises and case law most frequently address communications that circumvent the adverse party's lawyer, but the dangers are even greater when a lawyer communicates with an unrepresented person. and the powers that be have thrown in the towel regarding representation of family law litigants, with do it yourself packages, The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. The significance of not giving legal advice is that the unrepresented party may claim an attorney-client relationship was created by the giving of such advice. The majority view appears to be that the legal nature of the communications must predominate over other interests, such as business or personal interests, in order for the privilege to apply.23 The minority view takes a more expansive view of the privilege, not requiring that the communications be predominately about legal interests.24. However, a lawyer for a governmental agency is not permitted to communicate directly with a regulated person that is represented in the matter by a lawyer who has not consented to the communications and is not permitted to cause or encourage such communications by other agency employees, and the agency lawyer is obligated to prevent such communications by employees over whom the lawyer has direct supervisory authority. 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. Members are entitled to six clinical sessions per calendar year. Back to Rule | Table of Contents | Next Comment, American Bar Association In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. . See Texas State Bar Ethics Committee Opinion 528 (April 1999) (determining Texas Rule 4.02 did not apply because the person the opposing attorney contacted was not involved in management decisions related to the litigation and will not be a witness who could make the organization vicariously liable because of his statements, acts, or omissions.). It appears that the holding in Visual Scene is representative of many other courts. Co., 26 F.R.D. When encountering different courts discussions of the co-client, joint defense/plaintiff, and common interest privileges, attorneys might find that the nomenclature varies from one jurisdiction to another. 1987) (holding that no waiver of the attorney-client privilege occurred when a patent owner, which was seeking to sell one of its divisions, disclosed its patent attorneys opinion letter to the prospective purchaser: Unless it serves some significant interest courts should not create procedural doctrine that restricts communication between buyers and sellers, erects barriers to business deals, and increases the risk that prospective buyers will not have access to important information that could play key roles in assessing the value of the business or product they are considering buying. This Article is published for general information, not to provide specific legal advice. Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. i couldnt recommend him more. To the contrary, they were in the initial stages of becoming parent and subsidiary.); Morvil Tech., LLC v. Ablation Frontiers, Inc., No. Because this privilege can mean the difference between producing a game-changing document and keeping that document out of an adversarys hands, mastering the elements and nuances of this particular privilege is worth the effort. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. . Conversely, some courts have recognized that, in a coverage dispute, insurers are entitled to discover at least some of the insureds counsels materials from the underlying case. The appellate court held that the plaintiff and the defendant processor shared a common interest in showing that the defendant manufacturer was liable for the plaintiffs damages (if any). And the absence of such language is not necessarily fatal to a subsequent privilege claim. See, e.g., Op. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. Rule 4.02dealing with a represented party. b. 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. But including such language in a communication can help support a claim of privilege because such claim will not appear to be merely revisionist, wishful thinking by a litigator. This is not surprising because these extensions of the attorney-client privilege are relatively new in the case law and the courts are still working through the fine distinctions. & Tel. More importantly for purposes of this article, courts have also recognized the co-client or joint client privilege, which extends the attorney-client privilege to include additional parties without the risk of waiver.6 Where multiple clients retain the same attorney(s) to represent them, communications among the multiple clients and the shared attorney(s) remain insulated from discovery. Serious drug or alcohol abusers are incapable of keeping their word, and certain attitudes, In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyers client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. Here youll find timely updates on legal ethics, the law of lawyering, risk management and legal malpractice, running your legal business and more. In re JP Morgan Chase & Co. Sec. sophistication of the unrepresented party, as well as the setting in which the explanation occurs;1 If you communicate with the unpresented party, obtain the party's consent to continuing the conversation; You may recommend that the unrepresented party engage the services of their own lawyer; Do Not Give Legal Advice Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. Family: Wife, Rosemarie; and sons, John (22) and Joseph (17). 1960). If the procurement officer says, You know, we are getting close to being done on this contract, but before we can finalize it I am going to have to run it past legal, then that company remains unrepresented on that matter so far as you know. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. The court likewise found that the work product exchanged between the plaintiff and the defendant processor was protected from discovery. Transmirra Prods. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. 2d 454, 454 (E.D. 33. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency's lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. 2002) (rejected common interest privilege because one party was not represented by counsel); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 80, 2016 WL 3188989 (N.Y. June 9, 2016). The joint defense privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counselall without allowing their common adversary (the plaintiff) to discover those communications. It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently. Coverage Litig., MDL No. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. But many lawyers might have only a tenuous grasp of what the common interest privilege is. 2000) (the privilege applies to legal, factual, or strategic communications); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. The city attorney told the labor attorney to cease communicating with city employees whose act or omission make the city liable without the city attorneys consent. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 generally does not prohibit outside counsel fromcommunicating ex parte with an opposing partysinside counsel about the subject of the representation. Cir. This is because the client is the principal and the lawyer is the agent, thus as a matter of law the lawyer cannot direct the client to do anything. Rule 2-100 defines "party" broadly. See, e.g., United States v. McPartlin, 595 F.2d 1321 (7th Cir. 764, 1990 U.S. Dist. 2000). 4.4 Respect for Rights of Third Persons. There, a labor organization employed an attorney to negotiate and resolve workplace issues. 6. From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. Quick Links . e (Am. The disclaimer "I am only representing your spouse" should be made in virtually every communication to the unrepresented party and should advise the pro se party to hire his/her own attorney. Rule 7.01. To illustrate, suppose you are in-house counsel working on a contract with a company that has in-house counsel, but you are dealing with someone in the Procurement Department who is not a lawyer. 103, 113 (S.D.N.Y. 12. The lawyer advised the client to get a statement of his account from the finance company so the attorney could review it. It's time to renew your membership and keep access to free CLE, valuable publications and more. Likewise, the two defendants presumably would have been able to invoke a joint defense privilege to shield their communications against the plaintiff. 2007) (joint venturers complying with new IRS regulation; joint venture was an accounting firm and a law firm working together on behalf of common clients in dealing with IRS regulations); In re Regents of the Univ. 0 In re Teleglobe Commcns Corp., 493 F.3d 345, 365 (3d Cir. To avoid potential waiver in most (if not all) jurisdictions, it is also a best practice to ensure that the attorneys in a common interest group handle all communications. Rule 4.03dealing with an unrepresented party. he never gave up, even with things seemed the darkest. [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. See, e.g., La. It's time to renew your membership and keep access to free CLE, valuable publications and more. 76 (Am. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2, Rule 4.2: Communication with Person Represented by Counsel. Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). A persons knowledge may be inferred from circumstances. Opinion 956 (1/14/13) Topic : Communication with unrepresented party; taking deposition of unrepresented party; deceptive/and/or fraudulent conduct at client's request.
attorney communication with unrepresented party