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Read the remainder of Rule 1.2, 1.4, 2.1, 3.1-3.6, and Rule 4.
We have seen that the attorney-client relationship brings with it many duties on behalf of the client. These include the duty to protect client information as well as the duty to competently carry forward the aims of the representation in consultation with the client. Rule 1.2, 1.3, 1.4. Not surprisingly, however, these duties are qualified by other obligations. The Code perhaps stated it best in Canon Seven, which required that "A lawyer should represent a client zealously within the bounds of the law." EC 7-1 recognized that this is a duty that inures to both the client and the legal system, and that the bounds of law includes the rules and "enforceable professional regulations." However, EC 7-2 recognized that "[t]he bounds of law in a given case are often difficult to ascertain." This section will attempt to ascertain and explore those bounds.
Model Rule 4.2 prohibits an attorney from communicating with a person who is known to be represented by counsel without that attorney’s consent. While the Rule prohibits communications where the attorney "knows" the party to be represented, such knowledge may be "inferred from the circumstances." ABA Formal Opinion 95-396. Although there is no general duty to inquire, "a lawyer may not avoid Rule 4.2's bar against communication with a represented person simply by closing her eyes to the obvious." Id. The rule applies in both litigation and transactional contexts. Id. See, e.g., In re Waldron, 790 S.W.2d 456, 458-9 (Mo. banc 1990).
This Rule applies to "persons" who are represented. This is a change from the term "parties," which had existed in the rule prior to 1995. The ABA Committee had construed the term "party" broadly to include any person who had retained counsel and whose interests were potentially distinct from those of the client on whose behalf the attorney was acting. The Committee found this interpretation necessary if the Rule was to serve its purposes - to protect against overreaching by adverse counsel, to protect the lawyer-client relationship from interference by the opponent, and to protect against disclosure of protected information. Id. There was a dissent from this broad construction, based on the use of the term "party" in Rule 4.2, in contrast to the use of the word "person" elsewhere, including Rule 4.3. The amendment was apparently to bring the language of the rule in conformance with the majority’s interpretation. The Rule only applies to communications regarding the subject matter of the representation.
Where an attorney representing a client finds that a person with whom he or she is dealing is unrepresented, the attorney may continue the communication, but must not state or imply that the attorney is disinterested. Rule 4.3. Moreover, if the lawyer knows or should know that the unrepresented person misunderstands the attorney’s role, the attorney is required to correct that misunderstanding. Id. Note that the rule applies to lawyers and, through 8.4(a), to agents of the lawyer. The clients themselves, however, are not prohibited from communicating with each other. See Restatement § 158(2). The line between what is prohibited and permissible communication in this regard is hazy.
These rules can act as a trap for the unwary, because the conduct the attorney under-takes may not appear inherently wrong. But the ABA has indicated that the predecessor provision, DR 7-104, precludes communication even where counsel has reason to believe that settlement offers are not being communicated to the opposing party and the communication may be in that party’s best interest. Informal Opinion 1348 (August 19, 1975); see also ABA Formal Opinion 92-362 (lawyers may not communicate settlement offers to opposing client, but may advise their own clients that they are free to do so). Moreover, courts have disqualified lawyers from continuing representation in cases where the rule has been violated, See, e.g., Papanicolaou v. Chase Manhattan Bank, 720 F. Supp. 1080 (S.D.N.Y. 1989); Cronin v. Nevada District Court, 781 P.2d 1150 (Nev. 1989); and have required other sanctions including exclusion of evidence, disclosure of statements and monetary sanctions. See e.g., Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998); see also Annotated Rules, 407-408.
One issue that has frequently arisen is the extent to which contact can be made with employees of a corporate party. Generally, any person who has the power to bind the corporation or to implement advice from corporate counsel should be deemed a party for these purposes. Opinion 95-396. Communication with former employees is not prohibited according to ABA Formal Opinion 91-359, although courts have reached varying decisions on these issues. See generally Annotated Rules, 394-400.
This provision has been challenged by commentators, who argue that giving power over communication to the attorney is inconsistent with the control vested in the client. See, e.g., Leubsdorf, Communicating With Another Lawyers’s Client: The Lawyer’s Veto and the Client’s Interests, 127 U. of Penn. L. Rev. 683 (1979).
Communication with witnesses is not within the purview of Rule 4.2 unless the witness is represented. The general view is that an attorney may interview opposing witnesses without the presence or consent of opposing counsel. This is permitted as long as there is no deception and counsel is fully identified. M.R. 4.3.
Dealing with favorable witnesses is governed by Rule 3.4. Rule 3.4(b) prohibits a lawyer from counseling or assisting a witness to testify falsely or from offering an inducement prohibited by law. An attorney who advises a witness, whether it be the client or someone else, to testify falsely is subject to discipline. See In re Oberhellman, 873 S.W.2d 851 (Mo. banc 1994); In re Storment, 873 S.W.2d 227 (Mo. banc 1994). This rule also applies to the payment of a fee to a witness that is not permitted by controlling law, such as a contingent fee for witnesses.
Rule 3.4(f) prohibits requesting that a person other than the client refrain from giving relevant information to another party unless the person is a relative, employee or other agent of the client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving the information. Note that attorneys must comply with state and local laws governing tampering with witnesses. For example, in Missouri, R.S.Mo. § 575.270 prohibits "tampering with a witness" and criminalizes the use of force, threat or deception to induce a witness to absent himself, withhold evidence or testify falsely, and the offering of any benefit to a witness for such purpose.
Tampering with or obstructing access to evidence is prohibited by Rule 3.4(a). This obligation is arguably co-extensive with the general obligation under the criminal code. See R.S.Mo. § 575.100.1(1), making it a crime to alter, destroy, suppress or conceal any record, document, or thing with the purpose to impair its verity, legibility or availability in any official proceeding or investigation. See also State v. Stapleton, 539 S.W.2d 655, 658 n.1 (Mo. App. 1976).
What about physical evidence of a crime? Must an attorney turn over such evidence to the government if he or she knows of its location? If he or she receives it from the client? From another person?
This issue was addressed in Morrell v. State, 575 P.2d 1200 (Alaska 1978). There, the court noted the prevailing view that, where the attorney merely learns of the existence of the evidence but does not take possession of it, the attorney is not required to advise the government of its existence. This obligation will be different in civil cases where there may be a duty to produce as part of discovery. Where an attorney in a criminal case takes possession of evidence, however, the attorney must turn that evidence over to the prosecution after a reasonable time for investigation. The prosecutor may not use the source of the information if the attorney received the item from the client or an agent of the client. Where the attorney received the item from a third party, however, the government can inquire into its source.
Rule 3.5 deals with communications with judges, jurors and prospective jurors. For the most part, this rule incorporates the law in the jurisdiction and makes failure to comply with that law a violation of the rules. Thus, the extent of contact with jurors and prospective jurors is governed by local law. Generally, such contacts are strictly controlled. See Annotated Rules, 337-43. This rule also limits ex parte communication with the court and prohibits conduct intended to disrupt a tribunal. Frequently, such conduct will also subject an attorney to contempt. For examples of conduct falling within this rule, see Annotated Rules, 343-45.
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