May 2013 | Earn one hour of MCLE Credit in Legal Ethics
The ‘no contact’ rule – trickier than you think
Becker
Many attorneys give little thought to California Rule of Professional Responsibility 2–100, [1] which precludes direct or indirect contact with a represented party, absent consent of the party’s counsel. It is easy to comply with the direct proscription against contact with an individual, represented party by simply avoiding interaction. Prohibited contact with party–affiliated witnesses and proscribed indirect contact is less easy to recognize.
Rule 2–100 is subject to competing policies of attorney obligations to the proper functioning of the adversary system, and attorney obligations of zealous advocacy. Further, attorney and clients’ right to free speech is also implicated. These competing interests mandate a bright–line test. An attorney must be able to determine whether particular conduct is permissible or risk disqualification. Gray areas blunt zealous representation, and thus the rule must be interpreted narrowly. Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1197–1198. Despite acknowledgement of the need for a clear, narrow rule, understanding the prohibitions is not always obvious or instinctive.
Implied Consent
Consent of a represented party’s counsel need not be express; it can be implied. Take the courthouse hallway discussion between counsel. As an attorney opines about legal theories and the merits of the case, the opposing party joins the discussion with her client. Most attorneys would naturally continue the discussion, relying on opposing counsel to curtail the contact if she deemed it necessary. Commentators agree that consent to this direct contact can be implied by the failure of the party’s counsel to object. (See, California State Bar Formal Opinion No. 2011–181(2011); Washington State Bar Association, Althoff, Ethics and the Law: Communicating with a Represented Governmental Client, (June 2001.) If the opposing party’s counsel is present, he or she can monitor the content of the conversation, present her point of view, or end the contact if necessary.
Vary the facts slightly, and the result changes. Attorney and dissolution client intentionally and loudly discuss the merits of the parties’ positions, ostensibly between themselves, within earshot of the opposing, represented party. The attorney–client discussion is merely a pretext to communicate with a represented party. Such a ruse violates the purpose of Rule 2–100, which is to preclude interference in the attorney–client relationship, essential to our adversary system of justice.
Contact with Party–Affiliated Witnesses
Contact with party–affiliated witnesses can, under some circumstances, be the equivalent of contact with a party. Rule 2–100 defines “party” to include:
(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or
(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
Courts turn to tort and evidence law to determine persons who come under subsections (1) and (2). See Snider, supra, 113 Cal.App.4th at pp. 1207–1210 [construing “managing agents” in rule 2–100(B)(1) and binding “admissions” in rule 2–100(B)(2) according to tort and evidence law]; see also American Bar Assn. (ABA) Com. on Prof. Ethics, opn. No. 91–359 (1991).
1. Managing Agents
A “party” can include a manager whose statements can bind the organization. Admissions can be imputed to the employer only if the employee has authority to speak on the employer’s behalf, such as high–ranking executives and spokespersons. This is known as the “managing–speaking agent” test. This test balances the competing policies of protecting the organizational client from overreaching by opposing counsel, and counsel’s need for information in the organization’s exclusive possession that may be too expensive or impractical to obtain through formal discovery. Rule 2–100 is not meant to protect an organization from revealing prejudicial facts. For example, in Snider, supra, the court found that counsel defending a former employee being sued for unfair competition and misappropriation of trade secrets did not violate the rule when he contacted mid–level employees who were not “managing agents” of the corporation.
Caveat – Dissident Directors: In closely held corporations, directors who would otherwise come within the definition of “party” under subdivision (1) often represent interests or are personally adverse to the corporation, and elect to retain their own counsel. In La Jolla Cove Apartments v. Superior Court (Jackman) (2004) 121 Cal.App.4th 773, the court held that Rule 2–100 carves out an exception to the no contact rule when the corporation’s attorney withholds consent but the director’s separate counsel consents to the contact. Thus, an attorney can contact the dissident director if his or her attorney consents, even if the corporation’s attorney objects.
2. Respondeat Superior Liability
Under California tort law, the conduct of an employee acting within the scope of employment is imputed to the employer under the doctrine of respondeat superior. Thus, any act or omission of a corporate defendant’s employee within the scope of employment that might be imputed to the corporation is within the meaning of the act or omission clause of subsection 2 of Rule 2–100(B). See San Francisco Unified School Dist. ex rel Contreras v. First School, Inc. (2013) 213 Cal.App.4th 1212, 1232. In Contreras, the disputed contacts were with bus mechanics in a lawsuit about bus maintenance; the court held such employees qualified as parties under the rule.
3. Former Employees
Rule 2–100 does not apply to former employees, regardless of whether they would have been considered a “party” while employed. Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 188–19. Attorneys representing an organization can ethically ask ex–employees to voluntarily refrain from speaking to opposing counsel, or to waive conflicts and accept representation by the organization’s counsel to gain the benefit of the rule, and protect against inadvertent disclosures of attorney–client communications by the former managerial employee. However, it is equally ethically permissible under Rule 2–100 for the organization’s opponent’s attorney to contact the formal managerial employee and elicit substantive, damaging information without the consent of the organization’s counsel.
Represented Party Need Not Be “Opposing” Party
Rule 2–100 is not limited to contacts with opposing parties. In Hernandez v. Vitamin Shoppe (2009) 174 Cal.App.4th 1441, an attorney unilaterally, without court approval, sent letters to class members after the court had reviewed and approved a proposed settlement, conditionally certified the class, appointed class counsel, and ordered the claims administrator to send notice to the class. The attorney represented dissenting class members he recruited through the letter to challenge the settlement. The Hernandez Court of Appeal held an injunction to preclude the attorney’s improper contacts with represented parties was proper.
Indirect Contact Also Precluded
Indirect contact is specifically precluded by the text of Rule 2–100(A). A common form of indirect contact is to use the client as a conduit to transmit information to the opposing party. In practice, it is not always clear how to distinguish between advising a client about his or her contacts with the represented party, and actually using the client to indirectly contact the represented party. Attorneys are afforded considerable latitude in advising their clients regarding communications with opposing parties, as long as the attorney does not overreach in light of the purposes underlying the rule.
California State Bar Formal Opinion No. 1993–131 (1993) opined that attorneys do not need to discourage clients from direct communication with each other. Information obtained directly by parties may be communicated by the client to the attorney and used in the litigation. However, Rule 2–100 is violated when the content of the communication originates with or is directed by the attorney. Thus, Opinion 1993–131 opines an attorney is prohibited from drafting documents, correspondence, or other written materials, for delivery to the opposing represented party, 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 questions, statements, or otherwise using the client to convey the attorney’s words or thoughts. In general, “counsel should be guided by the overriding purpose of Rule 2–100, which is to prohibit one side to a dispute from obtaining an unfair advantage over the other side as a result of having ex–parte access to a represented party.” (Opn. No. 1993–131, supra.)
In Contreras, supra 213 Cal.App.4th 1212, 1235–36, the Court of Appeal seemed to follow the lead of Opinion 1993–131 and other jurisdictions that preclude an attorney from preparing legally binding documents for the client to present to a party. The Contreras Court observed “preparing legally binding documents for an opposing party to sign takes advantage of the fact that the party is being contacted without knowledge, consent or presence of her legal representative.” However, in Contreras there was no evidence that the attorneys took such a step, so this issue was not in dispute.
Like California, the American Bar Association recognizes that parties have the right to communicate directly with each other and to get advice from their counsel about contacts with a represented opponent. In the ABA Committee on Ethics and Professional Responsibility, Formal Ethics Opinion No. 11–461 (2011) the committee endorsed the general rule that the extent of a lawyer’s advice to a client planning to communicate with a represented party should be guided by “whether the lawyer’s assistance is an attempt to circumvent the basic purpose of [ABA Model Rules of Professional Conduct,] Rule 4.2, to prevent a client from making uninformed or otherwise irrational decisions as a result of undue pressure from opposing counsel.”
The ABA differs from California on the extent an attorney may prepare a client for direct contact with a represented opponent. According to the ABA, attorneys may draft some documents for use in the communications. The ABA adopted the approach taken by Restatement [(Third) of the Law Governing Lawyers (2000) section] 99 Comment (k) which allows the lawyer to review, redraft and approve a letter or a set of talking points that the client has drafted and wishes to use in her communications with her represented adversary. The ABA opined such advice enables the client to communicate her points more articulately and accurately, or prevents the client from disadvantaging herself. The client also could request that the lawyer draft the basic terms of a proposed settlement agreement she wishes to have with her adverse spouse, or draft a formal agreement ready for execution. (ABA Opn. No. 11–461, supra) The ABA committee reasoned that otherwise, only sophisticated clients, who are able to create first drafts of agreements or talking points on their own, would be able to take advantage of their attorney’s advice.
Notwithstanding the ABA’s more liberal approach, California attorneys must adhere to the more restrictive limitations set forth in California State Bar Formal Opinion No. 1993–131 (1993). This approach was recently endorsed by the Contreras court; there are no opinions to the contrary, and it is therefore binding precedent.
Client’s Right to Free Speech
An interesting question not addressed by Rule 2–100 is how far a court can go to restrain clients’ contact with witnesses as a prophylactic measure to insure they are not used as a conduit for improper attorney contact. Courts must take care not to impose attorney ethical obligations on their non–attorney clients, and thereby curtail their constitutional rights to free speech. Absent a protected competing interest on a level equivalent to the constitutional guarantee of free speech, court orders limiting client speech for fear that clients are being used as a conduit for attorney contact are not appropriate sanctions. Rule 2–100 cannot be construed to unduly interfere with the right of parties to communicate directly with one another absent compelling evidence of abuse. Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1224 – 25.
Competing Statutory Schemes May Provide a Different Result
On its face, Rule 2–100 is not intended to override a statutory scheme or case law. The discussion of the rule states:
Rule 2–100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule. There are a number of express statutory schemes which authorize communications between a member and person who would otherwise be subject to this rule. These statutes protect a variety of other rights such as the right of employees to organize and to engage in collective bargaining, employee health and safety, or equal employment opportunity.
For example, the False Claims Act at issue in Contreras prohibits employers from imposing rules to inhibit employees from acting in furtherance of a false claims action. An employer sued under the act cannot interfere with its employees’ ability to communicate with plaintiffs’ counsel either directly or indirectly by advising its attorney to withhold consent for interviews with willing employees.
Conclusion
Rule 2–100 is intended to prevent attorneys from interfering in another party’s attorney–client relationship. This goal, if enforced too broadly, could stifle attorneys’ advocacy or a client’s right to free speech. Courts acknowledge the need for clarity, but a bright–line rule is not attainable given the myriad means of communication, client personalities, and countervailing statutory and constitutional considerations. An attorney facing an ethical question in this area should proceed thoughtfully in light of the above. As in most ethical situations, the perspective of a colleague or ethics attorney is invaluable.
Jennifer A. Becker is a partner in the San Francisco office of Long & Levit. Her practice focuses on handling professional liability matters involving attorneys, architects, engineers and accountants. She is a certified specialist in Legal Malpractice law by the State Bar of California’s Board of Legal Specialization. She is also a member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. This article appears in the California Bar Journal as part of COPRAC’s outreach and educational effort. For more information on COPRAC go to calbar.ca.gov/ethics. The opinions expressed herein are her own.
[1] All references to Rules herein are to the California Rules of Professional Conduct unless otherwise noted.