Communication with person represented by counsel

Rule 4.2 of South Carolina’s ethics rules deals with when an attorney can or cannot speak with a person who is represented by another attorney. As a starting point, the rule is you don’t:

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.

This usually comes up when I find out that a prosecutor has talked to a client about their case when I was not present. When it happens I hit the roof, like most attorneys – our job is, above all else, to protect our client and here is the very person that we are protecting them from, breaking the rules. Sometimes we let it slide, sometimes we look into it and find out it was unintentional or otherwise harmless, sometimes we raise hell and then let it go, rarely will it become an issue at trial.
The other time that the situation arises is when someone calls or comes in for an appointment, and they want to retain us but they are already represented by another attorney that they are not happy with. Sometimes a person calls and they just want a second opinion because they don’t like what their attorney has told them. This is a hot-button issue, because times are hard and no attorney wants to feel like another attorney is “poaching” their clients. I’m blogging about this because I’d like to hear what others’ opinions are on this subject and how they handle these situations.
Back to the rule for a minute, because there is a full page of comments that follow the rule. Specifically, Comment 1 states the purpose of the rule:

[1] This Rule contributes to the proper functioning of the legal system by protecting 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 uncounselled disclosure of information relating to the representation.

The rule is there to protect the client from overreaching by other lawyers in the case – prosecutors or co-defendants’ attorneys in a criminal case, or opposing counsel in a civil case. Although “poaching” of clients, however defined, is reprehensible, the rule is not designed to protect attorneys’ pecuniary interests. Further, Comment 4 has the following statement:

Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter without consent from or notice to the original lawyer.

My understanding of this rule as applied to persons who call seeking advice or seeking to retain another attorney has always been that attorneys can, and in some cases should, talk to a person who calls seeking advice or seeking to retain another attorney. The way I’ve handled this situation varies depending on the circumstances –
1) If someone is obviously looking for a second opinion or they just don’t like the advice their attorney has given them, I can’t help them. I cannot give a legal opinion to someone (i.e. should I accept this plea offer) based on a phone call or initial consultation. Sometimes these people just need assurances that their attorney knows what they are doing (if I know their attorney), and they are satisfied. The last thing an attorney wants to hear from their client is, “I talked to another lawyer and they said that this is how my case should be handled.”
2) If someone is “shopping” for a new lawyer, or they are specifically calling me because they want my firm to represent them, I talk to them. I find out who represents them and what their complaint is. If it is a normal, run of the mill complaint (he doesn’t call me often enough, I am not sure that he knows what he is doing, he didn’t do A or B like I asked him to), I usually will take a minute to reassure them that their attorney does know what he or she is doing and advise them to call their attorney and talk things out. On the other hand, if it is clear that they are going to hire another attorney, in some cases I will accept their case. I say in some cases because often the problem is not the original attorney, it is the client – I’m not interested in picking up difficult or especially high-maintenance clients.
Why is this ethical under the rules? Because if it was not, it would be exceptionally difficult for clients to have the attorney of their choice. The attorney and client have to fit, based on the attorney’s skill set/ practice areas and based on their personalities. A client should not be required to fire their attorney and then drift without representation while they seek new counsel. Further, more often than not it takes a simple conversation with the second attorney to repair the original attorney-client relationship.
The perceived problem is where the client calls a second attorney who then trashes the original attorney or otherwise pushes or overreaches in an attempt to persuade the client to hire them and drop the original attorney. I have never done this, but I know that there are attorneys who do – or at least I have had clients or potential clients who have told me that they experienced this. It is fascinating, the things that clients tell me other attorneys said when the client interviewed them.
I debated this with a local attorney this afternoon, and he tells me that he does not believe the rule says what I think it says. That’s ok. As a practical matter, regardless of what the rule says, I am considering whether it is better to simply refuse to speak with anyone who calls who has already consulted an attorney. I think that this does a disservice to the person on the other end of the line who has the right to choose their counsel. But what it does is it preserves relationships among local attorneys and it forecloses the possibility of misunderstandings and hard feelings. What’s your opinion?

2 Responses to “Communication with person represented by counsel

  • Paula Gardner
    9 years ago

    Just because it’s ethical doesn’t mean it’s morally correct. See below article that explains how I feel and live.
    Morals? Ethics? The Law?
    by Steven Ouellette
    These three terms are sometimes used interchangeably when in fact they describe different and fundamentally independent concepts. Clarifying the terms will clarify what type of dilemma you might be facing.
    Morals are those values or core beliefs that guide your decisions and are the output of your culture, how you were raised, and your experiences along the way. They are what allow you to determine right from wrong. What is moral and what is not is an internal judgment and varies from person to person, culture to culture, and society to society.
    Ethics are standards of behavior within a group or society that indicate how we should behave to achieve the moral goals upon which the society places importance. Ethics are related to how we act and interact with others, and so are external in nature. These vary from society to society, but individuals within the society are expected to maintain these standards. If they do not, there is often a social price to pay.
    Laws are the minimum code of conduct to which the group has agreed to adhere. Breaking laws means breaking the social contract to which you agreed in becoming a member of that society. In turn this means that the society has the right to punish you by revoking some or all of the rights granted by that society.
    The most difficult ethical problems (i.e., how to act) are when one is faced with a conflict between two or more conflicting morals (i.e., what we see as right and wrong). What may be a moral choice is not always an ethical one, and what may be an ethical choice is not always a moral decision.

  • I agree. An example is when an attorney has a current client who he knows committed a murder, but another person has been convicted for the murder. Ethics prevent the attorney from telling a soul, but that attorney’s personal ethics, or morality, may demand that he tell someone. The ethical choice is not moral, and the moral choice violates the ethics rules.
    I have to say that, as a general rule, talking to a person who is represented by counsel but who wants to retain me does not feel like a moral wrong. On the other hand, talking to a person who is represented by counsel to gain an advantage in a case against them does feel immoral, but that is prohibited by the ethics rule as well as morality.

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