Andrew Dilworth, Cooper, White & Cooper LLP
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An important component of legal work, whether litigation or transactional, involves interacting with other parties, many of whom may be represented by counsel. These interactions take place through various methods of communication, including in-person, written, telephonic and electronic. Technological advances, including social media, have increased the methods and ease with which communications are made. As our ability to communicate continues to evolve, it is important for attorneys to have a thorough understanding of the ethical prohibitions on contacting represented parties.
California Rule of Professional Conduct 2-100(A) states “[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” The rule is intended to prevent an attorney from taking advantage of a party in the absence of her counsel, and to preserve the integrity of the attorney-client relationship. See Graham v. United States (9th Cir. 1996) 96 F.3d 446, 449; see also CRPC Rule 2-100, Discussion. The “intent” or “motive” of the attorney initiating the contact does not affect the application of the rule since the rule seeks to “shield the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intentioned, but misguided.” Abeles v. State Bar (1973) 9 Cal.3d 603, 609. In this respect, the rule may be thought of as having a strict liability component.
The rule applies in litigation and nonlitigation contexts, and is not limited to contacts with an “opposing” party.Graham, supra, 96 F.3d at 449; Hernandez v. Vitamin Shoppe Indus., Inc. (2009) 174 Cal.App.4th 1441, 1460; CRPC 2-100, Discussion. The rule therefore applies to communications with represented “coparties.”Hernandez, supra, 174 Cal.App.4th at 1460. Application of the rule is limited, however, to communications with “parties.” Thus, it is not a violation of the rule to contact a represented “non-party” absent the consent of his or her counsel. Matter of Dale (Rev.Dept. 2005) 4 Cal. State Bar Ct. Rptr. 798, 804-807.
Where the rule applies, the required consent must come from the represented party’s counsel, not the party. See Cal. State Bar Form.Opn. 2011-181. Even if a represented party wants to communicate with an opposing attorney, the attorney may not do so without opposing counsel’s consent. Attorneys must therefore be careful not only in initiating communications with a party known to be represented by counsel, but also in responding to communications initiated by that party rather than their counsel.
Central to application of Rule 2-100 is the requirement that an attorney “know” the contacted party is represented by counsel. If this predicate does not exist, there is no violation. Constructive knowledge is insufficient. Snider v. Sup.Ct. (Quantum) (2003) 113 Cal.App.4th 1187, 1209. Attorneys must be careful, however, because actual knowledge can be established from “circumstantial evidence” where an attorney has “reason to know” a party is represented by counsel, but fails to investigate or communicate with counsel before initiating contact. Id. at 1215-1216. Where, for example, a party has counsel of record, an attorney initiating contact with the party may be deemed to have reason to know of the representation and contact absent consent of opposing counsel may be improper. See Abeles, supra, 9 Cal.3d at 609-610.
The mere fact a party is likely to obtain counsel at some future date, such as after a lawsuit is filed, does not constitute “knowledge” of representation as to communications taking place before the representation occurs. Thus, it is not impermissible to interview a claimant before they file suit and retain counsel.Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1402. Similarly, the mere fact an organization has “in house” counsel does not trigger the knowledge requirement of the rule unless the lawyer knows the in house counsel represents the individual being contacted. Id. at 1402. Moreover, absent “reason to know” a party is represented by counsel, an initiating lawyer has no duty to inquire. See Cal. State Bar Form.Opn. 1996-145. The most conservative approach, however, is to inquire at the outset of any communication as to whether the party being contacted is represented by counsel.
The “form” of communication is irrelevant, all forms are prohibited. See, e.g., Crane v. State Bar (1981) 30 Cal.3d 117, 121 (letters); Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597 (telephone calls). Thus, attorneys utilizing social media may not engage in communications with a represented party without counsel’s consent if the communication is intended to elicit information about the subject matter of the representation. See, e.g., San Diego County Bar Ass’n Legal Ethics Opn. 2011-2.
The rule prohibits both “direct” and “indirect” communications. Even copying a represented party on communications with their counsel, absent opposing counsel’s consent, arguably violates the rule. A related, and significant point is that “[r]ule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made.” CRPC 2-100, Discussion. Attorneys must be cognizant, however, that there is a difference between advising a client that he or she may communicate directly with a represented party (or having clients engage in direct negotiations) and an attorney using his or her client as an indirect agent or intermediary to negotiate behind opposing counsel’s back. See Cal. State Bar Form.Opn. 1993-131. The “source” of the content of the communication may affect such a determination. A communication which content “originates with or is directed by the attorney” may be a prohibited indirect communication, whereas a communication which content “originates or is directed by the client” may be permissible. Id. Parsing out such a distinction is not always easy, especially where a client’s communications with the other party may be directly influenced by information the client received from her own attorney as a natural consequence of the attorney-client relationship.
Where an entity is a party and represented by counsel, its officers, directors, partners and managing agents are also considered represented parties for purposes of the rule. CRPC 2-100(B)(1). A “member” or “employee” of an association, corporation, or partnership, is considered a party for purposes of the rule “if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or [where the member’s or employee’s] statement may constitute an admission on the part of the organization.” CRPC 2-100(B)(2). Accordingly, when dealing with an association or entity represented by counsel, an attorney initiating contact must not only be cognizant of obtaining consent for communications with officers, directors, partners or managing agents, but also with lower level employees whose acts or omissions may be binding on the entity or may constitute an admission on its behalf.
A notable exception regarding contacts with corporate parties exists as to “former” officers or employees. Rule 2-100 is not intended to apply to communications with individuals who no longer hold office or are no longer employed by the entity. See CRPC 2-100, Discussion; Triple A Machine Shop, Inc. v. State of Calif.(1989) 213 Cal.App.3d 131, 140. Thus, a lawyer may interview an unrepresented former employee or officer of an entity without the consent and knowledge of the attorney representing the entity. Continental Ins. Co. v. Sup.Ct. (Commercial Bldg. Maint. Co.) (1995) 32 Cal.App.4th 94, 118-119.
That said, several additional points should be made with respect to contacting former officers or employees. First, if a former officer or employee has their own counsel (separate from the counsel representing the entity), and is an involved party, the rule may apply. Second, the rule may apply if counsel for the entity “affirmatively” takes on representation of the former officer or employee. Third, even where contact with a former officer or employee is not governed by the rule, the attorney initiating the contact may not inquire about privileged communications the former officer or employer participated in while with the entity. State Farm Fire & Cas. Co. v. Sup.Ct. (Taylor) (1997) 54 Cal.App.4th 625, 652.
Rule 2-100 also speaks to a handful of situations in which the rule does not apply due to various policy considerations. Subdivision (C) of the rule makes clear, for example, that the rule is inapplicable to: (1) communications with a public officer, board, committee or body, (2) communications initiated by a party seeking advice or representation from an independent attorney of the party’s choice, and (3) communications otherwise authorized by law. CRPC 2-100(C)(1)-(3).
Failure to understand and comply with the above principles can have serious consequences for practitioners. A rule violation can result in discipline. See, e.g., Levin v. State Bar (1989) 47 Cal.3d 1140, 1150 (three year suspension). Also, while civil courts should not seek to penalize an attorney who has violated the rule, a civil court does have discretion to fashion remedies to address the consequences of a violation. This can include disqualification of the attorney who initiated the improper contact, where, for example, the contact results in disclosure of confidential information, creates an unfair advantage for the initiating lawyer, or impacts the integrity of the judicial proceeding. See, e.g., Continental Ins. Co., supra, 32 Cal.App.4th at 111; Chronometrics, supra, 110 Cal.App.3d at 608.
Given the potential consequences, and the increasing ease with which communications can be initiated (especially electronic communications), all attorneys, whether litigation based or transactional, should exercise special care in communicating with other parties who may be represented by counsel.
Andrew Dilworth is a litigation partner with the law firm of Cooper, White & Cooper LLP in San Francisco. He is the current Chair of the Bar Association of San Francisco’s Legal Ethics Committee. Mr. Dilworth’s practice focuses on the law governing lawyers. He represents and counsels lawyers and law firms in litigation and non-litigation matters, including malpractice defense, conflicts issues and State Bar proceedings. Mr. Dilworth also serves as an Adjunct Professor at the University of San Francisco School of Law where he teaches Legal Ethics.