September 2012 - Proposed Changes to the “No Contact” Rule Go Too Far
by Joel M. Pores
Spouses represented by separate counsel in a dissolution proceeding wish to communicate without the lawyers present regarding the issues in dispute. One of the parties seeks guidance from his or her lawyer regarding the strategy and content of a meeting with the ex-spouse. Public policy strongly favors the settlement of disputes, especially where the parties are in an ongoing relationship. The parties here need to communicate with each other, without their lawyers present. Discouraging the client from direct communication with the opposing party may constitute incompetent representation as it may foreclose “opportunities to efficiently settle or resolve” disputes.
Rule 2-100 of the California Rules of Professional Conduct states that while 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. Cal. Rules of Prof’l Conduct, R. 2-100. This “no contact” rule is necessary to preserve the attorney-client relationship, confidentiality of communications between lawyer and client, and the proper administration of justice. Direct communications are prohibited and easily identified. This article explores the extent, if any, to which the lawyer may provide such advice and guidance without violating Rule 2-100 of the California Rules of Professional Conduct as an indirect communication by counsel with a represented party. By comparison, Rule 4.2 of the American Bar Association, Model Rules of Professional Conduct omits the reference to direct or indirect communication. Model Rules of Prof’l Conduct R.4.2 (2011). “In representing a client, a member shall not communicate 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 or is authorized by law to do so.”
What constitutes an indirect communication has been the subject of several ethics opinions. One such opinion concluded that where the content of the communication originates with or is directed by the client and not the attorney, it is permitted under the rule. A California State Bar Ethics Opinion provides that:
When the content of the communication to be had with the opposing party originates with or is directed by the attorney it is prohibited by rule 2-100. Thus, an attorney is prohibited from drafting documents, correspondence or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney. An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented party words or thoughts originating with the attorney. When the content of the communication originates with or is directed by the client and not the attorney it is permitted by rule 2-100. Thus, an attorney may confer with the client as to the strategy to be pursued in, the goals to be achieved by and the general nature of the communication the client intends to initiate with the opposing party as long as the communication itself originates with and is directed by the client and not the attorney.
Cal. State Bar Formal Op. No. 1993-131, at 3.
Addressing indirect communication, California State Bar Formal Opinion 1993-131 acknowledges that where the “line is drawn is more easily determined in some cases than others.” Opinion 1993-131 flatly prohibits (1) communication by a client with the opposing party that is originated with or directed by the attorney, (2) an attorney’s drafting documents to be delivered to an opposing party represented by counsel, (3) an attorney’s sending documents to an opposing party even where the party’s counsel is simultaneously copied, (4) scripting questions to be asked or statements to be made in client-to-client communications, and (5) actively using the client to communicate words and thoughts originating with the lawyer. Id. In contrast, client-to-client communication initiated or directed by the client is permissible. Id. at 2. In addition, the lawyer may provide the client with guidance regarding client-to-client communications. Id.
Initiating a settlement conference or indirectly participating in negotiations through instructions to the client is impermissible. Id. It was improper for a lawyer to use the client to lure the opposing party into a settlement conference behind opposing counsel’s back. Abeles v. State Bar, 9 Cal. 3d 603 (1973). The test as to when a communication originates with or is directed by a lawyer remains unclear and is subject to interpretation. Even if a lawyer prepares a communication at the client’s request, the communication may still have “originated from” and been “directed by” the lawyer.
In response to the lack of clarity regarding the no contact rule and the topic of indirect communications, the Rules Revision Commission drafted Proposed Rule 4.2—Communication with a Person Represented by Counsel [2-100]. The proposed rule 4.2 would replace rule 2-100, change “party” to “person,” and add a requirement that the lawyer shall not imply that he or she is disinterested when communicating. As before, the lawyer shall not seek to obtain privileged or confidential information, under paragraph (e). Proposed Cal. Rules of Professional Conduct, rule 4.2, com. 7, available at http://ethics.calbar.ca.gov/Committees/RulesCommission/ProposedRulesofProfessionalConduct.aspx. The comments to proposed rule 4.2 have been expanded to twenty-four, including numbers five and seven, which deal directly with our particularly thorny issue. Comment  provides that “The prohibition against ‘indirect’ communication with a person represented by counsel in paragraph (a) is intended to address situations where a lawyer seeks to communicate with a represented person through an intermediary such as an agent or investigator.” Comment  would provide:
This Rule does not prohibit represented persons from communicating directly with one another, and a lawyer is not prohibited from advising his or her client that such communication may be made. A lawyer may advise a client about what to say or not to say to a represented person and may draft or edit the client’s communications with a represented person subject to paragraph (e).
These proposed changes are more in line with the Model Rules and the ABA position. ABA Formal Opinion 11-461, issued August 4, 2011 states: “Parties to a legal matter have the right to communicate directly with each other.” Advising Clients Regarding Direct Contacts with Represented Persons, ABA Formal Op. 11-461. “A lawyer may ethically advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.” Id. The ABA Opinion goes so far as to allow settlement papers to be presented for signature so long as the represented party has been given the chance to speak with his or her own lawyer before signing the papers. There is no requirement of knowledge of the meeting on the part of the lawyer who has not participated in the communication.
The Restatement (Third) of the Law Governing Lawyers § 99 (2000) comes to similar conclusions as the ABA. Illustration 6 states that a lawyer may redraft a letter to be sent to a represented person by his or her client. The proposed rule 4.2 changes, the ABA position, and the Restatement all consider the indirect communications proper so long as confidentiality and privilege are kept, and there is no overreaching. The source of the communication would no longer matter. Although there are times where parties need to communicate between themselves, it would be improper for an attorney to get so involved in preparing the client for the meeting that his or her own knowledge and skill is to be used against the unsuspecting represented party. To even the playing field, opposing counsel must be informed of the meeting to similarly prepare their own client. Absent such equality and fairness, the extent of lawyer participation should be limited as set forth in Formal Opinion 1993-131 to general considerations only, and not be expanded to drafting, scripting, agreement writing, and otherwise as perhaps implied by California’s proposed new rule.
Joel M. Pores is a sole practitioner in Irvine, handling Legal Malpractice, Ethics, and Fee Disputes. Mr. Pores has served as Co-Chair of the OCBA Client Relations Committee, as a member of the State Bar Committee on Mandatory Fee Arbitration, and is a member of the OCBA Ethics and Professionalism Committee. He may be reached at JPores@Poreslaw.com.