Attorney Smith is representing a client in a contentious divorce proceeding. Smith knows that the opposing party, Ms. Jones, is represented by Attorney Williams. Smith wishes to obtain certain financial information directly from Ms. Jones, believing she will be more forthcoming if Williams is not present. Smith schedules a meeting with Ms. Jones, informing her that Williams is welcome to attend, but not explicitly requiring Williams's presence or ensuring Williams is aware of the meeting. During the meeting, Smith obtains the desired information. Has Smith violated a professional conduct rule?
- AYes, because Smith intentionally circumvented Attorney Williams's role in the representation.
- BYes, because Smith communicated with a represented person about the subject of the representation without the consent of her counsel.
- CNo, because Smith informed Ms. Jones that her counsel was welcome to attend.
- DNo, because Smith did not explicitly tell Ms. Jones not to bring her counsel.
Show answer & explanationAnswer & explanation
Correct answer: B. Yes, because Smith communicated with a represented person about the subject of the representation without the consent of her counsel.
Rule 4.2 prohibits a lawyer from communicating 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. Smith's actions constitute a direct communication with a represented party without obtaining consent from their counsel, regardless of whether Smith invited the counsel or explicitly excluded them.
Why the other options are wrong
- A. While Smith's intent to circumvent is likely present and contributes to the violation, the direct violation is the communication itself without consent.
- C. Simply stating counsel is 'welcome' is not the same as obtaining consent from the counsel, which is required.
- D. The absence of an explicit prohibition does not negate the affirmative requirement to obtain counsel's consent.
Communication with Represented Persons
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.
- Applies when lawyer knows person is represented.
- Requires consent of the other lawyer.
- Prohibits direct or indirect communication on the subject of representation.
- Exceptions: court order, authorized by law.
Memory trick: Don't talk to the represented; go through their lawyer, or you're out!