Ethics, Professional Responsibility and More. But by focusing on the essential elements of the privilege, taking care to review case law in the pertinent jurisdiction, and employing some of the pointers in this article, a lawyer can make the most of the privilege and shield potentially damaging documents from production in litigation. /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. Rule 7.01. Cir. 4.4 Respect for Rights of Third Persons. The court noted that Rule 4.02 is not determinative of whether counsel should be disqualified for trial, and that under other circumstances, some confirmation of termination (such as a copy of the letter of termination or confirmation from prior counsel) would be appropriate. Cite as RPC 4.2 History. Pa. 1997) (The interests of the parties need not be identical, and may even be adverse in some respects.). In In re Users System Services, Inc.,[3] however, several plaintiffs were represented by the same counsel and one plaintiff wrote similar letter to defense counsel asking for a meeting to discuss the case. This is a short, sweet, yet powerful statement reiterated many times by different committees, sections, and sources within the Florida Bar, with respect . MORE INFO Member Directory Georgia Rules of Professional Conduct Jan. 1, 1986. They had no common interest, and indeed, their interests were in conflicteach company wanted to get the best deal from the other company, and to the extent that one succeeded in its goal, the other suffered.); SCM Corp. v. Xerox Corp., 70 F.R.D. 2000). Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. . The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. 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. The differences highlight areas of disciplinary emphasis that Texas lawyers should be aware of at all times, and especially when dealing with attorneys from other states. 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). There is again a material difference, however. Certain issues, such as whether defense counsel is retained independently by the insurer,33 along with who paid counsel and whether the insurer reserved rights when providing a defense,34 can determine whether the insurer and the insured had a common interest, allowing the insurer discovery of the insureds litigation materials. Lawyer in Buckhannon, WV serving the people of North Central WV. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. 2008). [4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. draconian supervision of sole and small firm practitioners, and in where 2019). Terminology varies across jurisdictions. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. is doomed to much grief and failure. The messy nature of the real world requires courts to determine whether the legal nature of the communications is salient enough to trigger protection. Pa. 2012) (similar). Visual Scene itself cited decisions from various federal courts, including the U.S. Courts of Appeals for the Third, Seventh, Ninth, and D.C. Circuits.22 Similar cases can be found in many other courts across the country. You can touch this. Rules of Professional Conduct Rule 4.3: Dealing with unrepresented person Table of Contents Rule 4.3 Comment Downloads Contact Rule 4.3 Downloads Massachusetts Supreme Judicial Court Rules and Orders Contact Trial Court Law Libraries + Updates: Adopted March 26, 2015, effective July 1, 2015 342, 348 (N.D. Ohio 1999) (rejected common interest privilege because only one party involved an attorney directly). 4.3.Dealing with Unrepresented Person. and selecting the appropriate Search Type (e.g., Case Number, Party Name, Business Name, Attorney Name, Attorney Bar Number, Judicial Officer, or Courtroom). Viewed after the fact, however, inferences tend to be in favor the layman. Ret. over 70% of litigants are self-represented, any attorney who refuses From a business standpoint and from a legal standpoint, the merger parties interests stood opposed to each other. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of . The goal of this presentation is to highlight a number of standards that govern the decision-making process and to raise certain specific challenges that may arise, to assist counsel in striking the balance between zealously representing one's client and treating fairly the unrepresented person. Having a lawyer for one purpose (or matter) does not mean one has a lawyer for all purposesindeed, when a new matter arises, a party is unrepresented until it makes the deliberate and conscious decision to hire a lawyer. Comments or inquiries may be directed to: John M. Tanner, Designed by Herrmann Advertising | Branding | Technology. 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. E-Tailer Liability for Defective Products Sold by Third-Party Vendors, Insurance in a Post-Pandemic World: New and Renewed Challenges, American Bar Association 1987). See Rule 8.4(a). Solicitation and Other Prohibited Communications 101 Rule 7.04. Subparagraph (d) of Rule 4.02 makes it clear that a lawyer can discuss a matter with a represented party when the party is essentially seeking a second opinion. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. (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. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.); Swidler & Berlin v. United States, 524 U.S. 399, 40611 (1998) (holding that the attorney-client privilege survives even death and noting that the U.S. Supreme Court rejects using a balancing test in defining the contours of the privilege); Kenneth S. Broun et al., McCormick on Evidence 87, at 12122 (John W. Strong ed., 4th ed. 407, 417 (N.D. Ill. 2006) (While Noranda and Falconbridge shared a common business interest, they also shared a common legal interest regarding compliance with antitrust and other laws affecting the sale of sulfuric acid.). If counsel does not represent the other party, your obligations are described in your state's version of ABA Model Rule 4.3. This policy lubricates business deals and encourages more openness in transactions of this nature.). 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. {{currentYear}} American Bar Association, all rights reserved. Pa. June 27, 1990) (rejecting application of common interest doctrine because retention of independent counsel signaled that the scope of the shared interest was uncertain), with Waste Mgmt., Inc. v. Intl Surplus Lines Ins. But this element often takes center stage in disputes over common interest claims, and so it deserves some analysis here. [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 organizations 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. Notably, in most jurisdictions, the parties do not need to reasonably anticipate litigation in order to qualify for the common interest privilege.26 Indeed, reasonable anticipation of litigation is usually an element of the work-product doctrine but not the attorney-client privilege. 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. But upon issuing an extraordinary writ of certiorari, the appellate court reversed the trial court, finding that the communications were privileged from discovery. [1] This Rule contributes to the proper functioning of the legal system by 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. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. (9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. Teleglobe, 493 F.3d at 366 ([C]ourts can afford to relax the degree to which clients interests must converge without worrying that their attorneys ability to represent them zealously and single-mindedly will suffer.); Regents, 101 F.3d at 139091 (substantially identical interest in protecting patent). Co., 26 F.R.D. 1989). Communications Exempt from Filing Requirements 108 Rule 7.06. [8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. 2007) ([T]he communication must be shared with the attorney of the member of the community of interest. To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim. Oh, I fired my lawyer and other lies frustrated laymen tell. When a lawyer is notified that another lawyer is entering a limited appearance in a matter, the lawyer must communicate with that lawyer regarding the issue, even where the lawyer has previously spoken directly with the pro se party. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. at 310 (The weight of case law suggests that, as a general matter, privileged information exchanged during a merger between two unaffiliated business[es] would fall within the common-interest doctrine.); United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. . This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. 5-200 (Trial Conduct) 3.4 (Fairness to Opposing Party & Counsel) 5-220 (Suppression of Evidence) 5-310 . 2007). Quick Links . CBA's Rule 4.3 addresses "communication with an unrepresented person" and can be seen here: Rule 4.3 Communicating with an Unrepresented Person (a) In communicating 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. In Durham v. This is a common situation: codefendants are often in the position of jointly denying that the plaintiff was harmed by anyone at all, but also arguing in the alternative that any harm was caused by the other defendant. In-house counsel and opponents lawyer can communicate, says Va. opinion, Op. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 1960). Even parties that are otherwise adversariessuch as a plaintiff and a defendantmight share a common interest privilege as to discrete issues of mutual importance. Most lawyers have a general understanding of the no-contact rule namely that under state versions of Model Rule 4.2, with a few exceptions, you cant communicate directlyon the subject of the representation with someone you knowis represented by counsel. But where does in-house counsel fit in? The phrase cause or encourage is not found in the Model Rules, and can make a significant difference when the client or Texas lawyer thinks the other lawyer is the problem (as is so often the case). 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. See Restatement (Third) of the L. Governing Laws. It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently. 18, 2019) (finding waiver where a client forwarded otherwise-privileged email to third parties); Bousamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (finding waiver where an attorney forwarded otherwise-privileged email to a public relations company). Whenever a lawyer communicates with a non-lawyer, there is the potential for misunderstanding and overreaching. Cal. American Bar Association The common interest doctrine is distinct from the common interest privilege because in the former scenario there are not necessarily two separate groups of clients and their respective counsel working toward a common goal in the underlying case. 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. lawyer's word should be his or her bond. Every lawyer (hopefully) knows what the attorney-client privilege is. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics. 71 0 obj <> endobj a. 12. Rule 4.2 (b) permits communications with a represented elected official under the following circumstances: (1) in writing, if copied to the opposing lawyer; (2) orally, upon adequate notice to the opposing counsel; or (3) in the course of official proceedings. Even in the current legal services market, where there is a trend for corporate clients to in-source legal work,many continue to rely on outside help for litigation and other matters, setting upa seeming choicefor an opponents counsel reach out toa companys inside lawyer, orcontact outside counsel. . 1995) (reservation of rights creates a conflict of interest). Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. When the lawyer knows or reasonably should know that the unrepresented 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). As noted in the concurrence, this decision was influenced by the fact that the motion to disqualify was not made for several months after the plaintiffs learned of the communication. 2d 948, 952 (W.D. 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. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. But there are also additional requirements to bear in mind specific to the common interest flavor of privilege. Serious drug or alcohol abusers are incapable of keeping their word, and certain attitudes, . 11. 07-CV-10945, 2008 WL 2217682, at *3 (E.D. Non-Illinois lawyer sending demand letter to Illinois business on behalf of Illinois resident Opinion #23-02 Division of Fees; Law Firm Partnership and Employment Agreements; Restrictions on Lawyer's Practice: Shareholder agreement requiring departing lawyer's new firm to pay former firm portion of fees earned from former firm clients 2022 21. California Rule of Professional Conduct 2-100 (A) prohibits a lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer. Two of the defendants were involved with manufacturing the glass, while the third defendant processed the glass. 7.
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