Discussing Your Client’s Case With Third Parties Interacting with third parties in the course of representation of a client: an examination of Rules 4.2 and 4.3 of the Rules of Professional Conduct by Lara Butler Butler, Sevier, Hinsley & Reid, PLLC

Interacting with other parties is part of the regular routine of every attorney. whether through litigation or transactional work on behalf of a client, attorneys communicate with:  the client  potential witnesses  family, work colleagues or friends of a client  opposing parties who are not represented by counsel.

The Digital Age of Communication  text message  message  social networking sites (Facebook, LinkedIn, twitter) In the digital age, interactions between a lawyer and third parties occur not only in person, in writing or on the phone. There are opportunities for communication in multiple formats:

Technological Advances These technological advances have improved the methods and ease with which we can communicate. 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, and the rules concerning communication to those without the benefit of legal representation.

Rules of Professional Conduct that govern communication with third parties  4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL  4.3: DEALING WITH AN UNREPRESENTED PERSON

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL “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.”

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL  Purpose (See Comment 1) To protect 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 uncounseled disclosure of information relating to the representation.

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL What does it mean to communicate in the context of RPC 4.2?  Communication: The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception. Black's Law Dictionary (9th ed. 2009).  A lawyer cannot communicate through a third party such as a private investigator, paralegal, legal assistant, or even through your own client, in a manner that is prohibited by the RPC:  comment [4] to RPC 4.2:“A lawyer may not make a communication prohibited by this Rule through the acts of another.” And makes reference to RPC 8.4:  RPC 8.4(a): “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another...”

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL Hypothetical Situation: your client is in your office meeting with you, and pulls out his cell phone to text or call his wife, so she can answer a question about the parties’ draft tax return. Spouse is represented by counsel.  See comment [4]: “... 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.”  RPC 4.2., read with the comment, an attorney may advise a client concerning communication with his or her spouse  However, 4.2 and 8.4 clearly prohibit directing your client to communicate with his or her spouse, when that spouse is the opposing party represented by counsel.

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL  To what types of communication or topics of communication does RPC 4.2 apply?  The subject of the representation  It does not apply to matters not related to the representation.  See comment 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. 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, such as additional or different unlawful conduct not within the subject matter of the representation...”

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL Typical subjects of family law representation:  Income – opportunities for extra income, increases in income, decreases in income  Employment – history, promotions, job changes, firings  Real estate – the marital residence, the real estate market as it relates to your efforts to buy and sell property  Children – where they go to school, how they are doing in school, whether they are changing schools, discipline issues, extracurricular activities, religious education, third persons that a parent allows around a child  Personal property – buying/selling, acquisition of  Residence – potential relocation from an area  Socializing – probably only an issue if there are allegations of adultery, or that a paramour has been brought around a third party

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL If most day-to-day matters about which you would communicate with anyone are the “subject of the representation” when it comes to divorce litigation, what is a safe conversation you could have with the opposing party or a third party in the litigation, who is represented by counsel?

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL To whom does this rule apply?  any person who is represented by counsel concerning the matter to which the communication relates. (see Comment [2]) When does the rule apply?  Always: Even when the represented person initiates or consents to the communication a lawyer must uphold rule 4.2. “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.” (Comment [3])

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL How does a lawyer know if a person is represented by counsel?  See RPC 1.0(f): "Knowingly," "known," or "knows" denotes actual awareness of the fact in question. A person's knowledge may be inferred from circumstances.  This is important to consider when receiving unsolicited text messages, messages or other electronic communication from individuals who are not readily identifiable. Be certain about the identity of the person with whom you are communicating before responding, as according to the rule knowledge can be inferred from the circumstances.

4.2: COMMUNICATION WITH A PERSON REPRESENTED BY COUNSEL Consenting to communication with a represented party  RPC 4.2 prohibits communication with a represented party “ unless the lawyer has the consent of the other lawyer...”  When could you, or when should you, consent to an opposing attorney communicating directly with your client?  What constitutes “consent” – i.e. what must you have from the attorney representing a person in the litigation to know that you have the consent necessary to ensure you are not violating Rule 4.2?

4.3: DEALING WITH AN UNREPRESENTED PERSON “In dealing 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. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are, or have a reasonable possibility of being, in conflict with the interests of the client.”

4.3: DEALING WITH AN UNREPRESENTED PERSON  Identifying your interests. Always be clear in words, both written and spoken, and your actions, about the person you represent and the nature of the lawsuit: “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.” (Comment [1])  In order to avoid a misunderstanding, a lawyer will typically need to  identify the lawyer's client and,  where necessary, explain that the client has interests opposed to those of the unrepresented person.

4.3: DEALING WITH AN UNREPRESENTED PERSON There are two situations that the comments to the rule distinguish:  unrepresented persons whose interests may be adverse to those of the lawyer's client.  In this situation the lawyer is prohibited from the giving of any advice, apart from the advice to obtain counsel  Unrepresented persons whose interests are not in conflict with the client's.

4.3: DEALING WITH AN UNREPRESENTED PERSON  The importance of assessing the unrepresented person  Whether a lawyer is giving impermissible advice may depend on  the experience and sophistication of the unrepresented person,  as well as the setting in which the behavior and comments occur  (See Comment [2])

4.3: DEALING WITH AN UNREPRESENTED PERSON Negotiating settlement with pro se parties ( see Comment [2])  4.2 does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute when the opposing party does not have an attorney.  The lawyer must explain to the party explained that the lawyer represents an adverse party and is not representing the person before engaging in any communication in an effort to settle a dispute. Once this has been accomplished a 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 document or the lawyer's view of the underlying legal obligations.

4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS “(a) In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person....”

4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS Lawyers representing family law clients frequently communicate with:  family members of the client  friends of the client  the client’s employer or work colleagues  medical or psychological professionals treating or evaluating the client, or the children of a client  third party witnesses Sometimes the lawyer initiates these opportunities for communication, after the client has consented to the lawyer communicating with a third person. At other times these opportunities for communication arise when a third person initiates the call / / message at the direction of the client or voluntarily.

RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person;....

RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PERSONS  This rule must be considered by attorneys, and made clear to support staff, before  Noticing depositions of third parties  Contacting third parties by phone, or mail to gather information related to your client’s case  Issuing subpoenas for hearings  Keeping witnesses advised about the rescheduling or cancellation of matters

Lara Butler Butler, Sevier, Hinsley & Reid PLLC Lara received her undergraduate degree from Rhodes College in In 1993, she received her J.D degree from the University of Memphis, where she was a member of the Law Review and the recipient of the American Jurisprudence Award in Contracts I. While in law school, she authored Cowe by Cowe v. Forum Group, inc.: Wrongful Life and the Dilemma of Comparing Impaired Existence with Nonexistence. 22:4 Memphis State University Law Review. Lara concentrates in the area of Domestic Relations, including divorce, child custody, visitation, child support, juvenile court matters and adoptions. Lara is also a Tennessee Rule 31 Listed Family Mediator.