What You Can Do—or Not
Bar against communicating with adverse parties doesn’t apply to inside counsel
Posted Jun 5, 2007 3:12 AM CDT
By Eileen Libby
A general rule of ethics is that a lawyer should not communicate directly with a person in a case who is represented by counsel. Instead, the lawyer must communicate with that person’s counsel, states Rule 4.2 of the ABA Model Rules of Professional Conduct. A comment to the rule explains that it is intended to protect individuals represented by counsel “against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”
But what if that other party is a form of organization rather than an individual? And what if the lawyer wants to communicate with the organization’s inside counsel?
In that circumstance, the communication may take place without violating Model Rule 4.2, states ABA Formal Opinion 06-443 (Aug. 5, 2006), issued by the Standing Committee on Ethics and Professional Responsibility.
In its opinion, the committee notes that Model Rule 4.2 is not intended to keep lawyers from communicating with each other.
“The purpose of Rule 4.2 is to prevent a skilled advocate from taking advantage of a nonlawyer,” states the opinion. “The protections provided by Rule 4.2 are not needed when the constituent of an organization is a lawyer employee of that organization who is acting as a lawyer for that organization. Unlike non-lawyer constituents, inside counsel ordinarily are available for contact by counsel for the opposing party.”
But an adverse attorney should not communicate with inside counsel who is part of an organization’s “constituent” group--who participated, for instance, in giving business advice or in making decisions that gave rise to the issues in dispute--without consent of the organization’s outside attorneys. In certain circumstances, it might be a violation for an adverse attorney to contact an organization’s inside counsel after being asked not to do so.
Moreover, the opinion notes, “Inside counsel are free to avoid such contact by referring the opposing lawyer to other inside counsel or to outside counsel.”
Firms may hold back benefits to keep retiring lawyers from practicing elsewhere
As he approaches his 60th birthday, a longtime partner contemplates retiring from his law firm and setting up a small, low-key practice across town.
It sounds like a plan, but before the lawyer plunges into that working retirement, he’d be wise to review the fine print of his partnership agreement to make sure he won’t have to forfeit his retirement benefits from the firm.
That could happen under Rule 5.6 of the ABA Model Rules of Professional Conduct, cautions the Standing Committee on Ethics and Professional Responsibility in Formal Opinion 06-444 (Sept. 13, 2006).
Generally, the rule prohibits partnership or other employment agreements that restrict a lawyer’s right to practice after the termination of a working relationship.
“Restrictive covenants involving lawyers diminish the pool of legal talent available to the public,” a comment to the rule notes. “The prohibition is also said to protect the lawyer’s independence, albeit by limiting the lawyer’s freedom to contract it away.” But the rule also contains an important exception that allows retirement benefits to be conditioned on restrictive covenants, the opinion notes.
Just slapping the label “retirement benefit” on a capital account or on income already earned isn’t sufficient, according to the committee. “Were that the case, through the mere expedient of labeling, a law firm or an employer could create significant financial disincentives for lawyers who might otherwise leave the firm to practice elsewhere,” the opinion states.
Although law firms and employers have significant latitude in shaping the nature and scope of restrictions on practice for lawyers who retire, those restrictions “must affect benefits that are available only to a lawyer who is in fact retiring from the practice of law, and cannot work a forfeiture of income already earned by the lawyer,” states the opinion. The retirement benefits exception can create difficult choices for a lawyer planning to retire. The lawyer still may choose to continue practicing after retiring from the firm, states the opinion, “provided the lawyer is also prepared to forfeit whatever retirement benefits are subject to the restriction.” Eileen Libby