A lawyer has broad latitude to advise her client regarding communications that the client may have with other represented parties in the absence of their counsel, according to Formal Opinion 11-461 (the opinion) of the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility, issued Aug. 4, 2011. The opinion expressly narrows the “no contact” rule under the ABA Model Rules of Professional Conduct (the Model Rules) to the extent that it would frustrate a lawyer’s duty to advise her client, but it preserves the prohibition against using the client as an intermediary for overreaching communications by the lawyer with other represented parties.
No Contact Rule
Model Rules Section 4.2, often referred to as the “no contact” rule, states that when representing a client, a lawyer may not communicate about the subject of the representation with a party who the lawyer knows to be represented, except with the consent of the other party’s lawyer (or authorization of a court). This rule is meant to prevent a lawyer from exerting undue pressure on another party that might induce that party to make an uniformed or otherwise irrational decision without advice from her own counsel.
Communications prohibited under the “no contact” rule include communications by a lawyer through an intermediary. Model Rules Section 8.4(a) states that it’s professional misconduct for a lawyer to violate any provision of the Model Rules through the acts of another, and comment 4 to Section 4.2 expressly states that a lawyer may not engage in communications prohibited by the “no contact” rule through the acts of another. Accordingly, the ABA has recognized that using a client as an intermediary to communicate with another party might violate the “no contact” rule.
Balancing A Lawyer’s Duty To Her Client
In its recent opinion, the ABA tries to balance a lawyer’s duty to advise her client about the client’s communications directly with another party, against the danger that the lawyer might be using the client as an intermediary to circumvent the “no contact” rule.
The ABA cites to Model Rules Sections 1.1 and 1.4(a)(2), which require a lawyer to provide competent counsel to her client and to advise her client as to the means the client may use to accomplish her objectives. This duty to the client, the ABA holds, may require a lawyer to advise the client about communications the client may have with other parties in the absence of her counsel.
The courts and bars in some states strictly limit such advice, but the ABA opinion takes a different approach. The ABA cites Comment 4 to Model Rules Section 4.2, which expressly provides that a lawyer isn’t prohibited from advising a client concerning communications that the client is legally entitled to make. Therefore, the ABA starts with the premise that a lawyer has a duty to advise her client about communicating directly with another party if that would be an effective approach to achieving the client’s objectives, so long as the advice doesn’t violate the underlying purpose of the “no contact” rule.
The ABA opinion defines the purpose of the “no contact” rule by citing to Comment 1 of Model Rules Section 4.2, which states that the rule is intended to prevent a lawyer from overreaching, prevent interference with another party’s attorney-client relationship and prevent a party from making uncounseled disclosures of confidential information or admissions against interest.
Under the ABA opinion, therefore, a lawyer isn’t prohibited from providing advice that courts and bars in some states have held to be per se impermissible, such as suggesting that a client directly communicate with another party, helping a client script such communications or even drafting a binding contract for the client to present to the other party. The ABA opinion states that the lawyer must only refrain from such activity if it would actually violate the purpose of the “no contact” rule. Thus, for example, the opinion recommends that if a lawyer gives her client a contract to present to the other party for signature, the lawyer should instruct the client to suggest that the other party consult with counsel before signing it, or the lawyer should conspicuously print that suggestion on the face of the contract itself.
A particular lawyer’s ethical duties, on this and other matters, are defined by the rules of the jurisdictions in which they are admitted to practice. But ABA ethics opinions are influential, especially in jurisdictions that have adopted the Model Rules. It remains to be seen whether any states will adopt this more permissive approach to exceptions for client advice with respect to the “no contact” rule.
Trust and estate litigation matters are often intra-family disputes that, even if settled, won’t result in the parties sharing a well-cooked bird and a little vino around the Thanksgiving table. Communication between the parties often devolves into shouting matches, stoney silence or strings of accusatory emails, causing their lawyers to discourage further communications. However, in the right situation, and at the right time, the parties may be able to cut through some inevitable posturing, not to mention attorneys’ fees, in conducting the case. The shortest distance between the parties’ two opposing points in your case may well be a straight line, and the ABA has now provided ethical guidance for that approach.