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Contacting Former Clients Represented by Successor Counsel: A New York City Bar Formal Ethics Opinion

New York, February 22, 2011 – Absent successor counsel’s consent, a lawyer may not contact a former client known to be legally represented to discuss matters within the new counsel’s scope of representation, states a Formal Opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2011-1).

Rule 4.2(a) of the New York Rules of Professional Conduct governs the issue. It provides as follows: “In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.”

As the Opinion notes, Rule 4.2(a) begins with the phrase “in representing a client,” which appears to limit the scope of the rule. The weight of authority, however, is that a lawyer may not contact a represented person even when the lawyer is acting pro se and thus not “representing a client” at the time of contact. As explained by the court in In re Discipline of Schaefer (Nev. 2001), “the lawyer still has an advantage over the average layperson, and the integrity of the relationship between the represented person and counsel is not entitled to less protection merely because the lawyer is appearing pro se.”

Rule 4.2 does not flatly prohibit all contact with former clients and there “appears to be no reason to adopt any such blanket prohibition,” the Opinion states. The Committee believes that “such a per se rule would unduly restrict an attorney’s ability to communicate with a former client regarding matters as to which the client is not represented by counsel. In our view, therefore, an inquiry from an attorney to a former client, including, but not limited to, a request for unpaid fees and expenses, would not run afoul of Rule 4.2 in the absence of any reason to believe that successor counsel is representing the client with respect to payment of those fees.”

In contrast, when a lawyer knows that the former client has secured new counsel, Rule 4.2 prohibits direct contact regarding any matter within the scope of the representation -- even where the lawyer is acting pro se -- unless the lawyer obtains the prior consent of successor counsel. To be sure, as the Opinion outlines, this conclusion may not be fully supported by the language of the first clause of Rule 4.2, which lawyers might justifiably interpret as permitting contact whenever the attorney initiating the communication is acting pro se and thus not “representing a client.”

Nevertheless, the Committee believes that “our construction, and that of most courts and ethics committees that have considered the question, comports with and furthers one of the salutary policy objectives of the rule,” namely, to protect “a represented nonlawyer party from ‘possible overreaching by other lawyers who are participating in the matter.’” In re Disciplinary Proceeding Against Haley. But given the ambiguity of the rule and its potential for creating a trap for the unwary, the Opinion ultimately notes, “we believe the Courts should consider amending the rule to clarify its intended scope and purpose.”

The full opinion can be read here: http://bit.ly/gz6QO2

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About the Association
The New York City Bar Association (www.nycbar.org), since its founding in 1870, has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

 

Rule 4.2(a) of the New York Rules of Professional Conduct governs the issue. It provides as follows: “In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.”
As the Opinion notes, Rule 4.2(a) begins with the phrase “in representing a client,” which appears to limit the scope of the rule. The weight of authority, however, is that a lawyer may not contact a represented person even when the lawyer is acting pro se and thus not “representing a client” at the time of contact. As explained by the court in In re Discipline of Schaefer (Nev. 2001), “the lawyer still has an advantage over the average layperson, and the integrity of the relationship between the represented person and counsel is not entitled to less protection merely because the lawyer is appearing pro se.”
Rule 4.2 does not flatly prohibit all contact with former clients and there “appears to be no reason to adopt any such blanket prohibition,” the Opinion states. The Committee believes that “such a per se rule would unduly restrict an attorney’s ability to communicate with a former client regarding matters as to which the client is not represented by counsel. In our view, therefore, an inquiry from an attorney to a former client, including, but not limited to, a request for unpaid fees and expenses, would not run afoul of Rule 4.2 in the absence of any reason to believe that successor counsel is representing the client with respect to payment of those fees.”
In contrast, when a lawyer knows that the former client has secured new counsel, Rule 4.2 prohibits direct contact regarding any matter within the scope of the representation -- even where the lawyer is acting pro se -- unless the lawyer obtains the prior consent of successor counsel. To be sure, as the Opinion outlines, this conclusion may not be fully supported by the language of the first clause of Rule 4.2, which lawyers might justifiably interpret as permitting contact whenever the attorney initiating the communication is acting pro se and thus not “representing a client.”
Nevertheless, the Committee believes that “our construction, and that of most courts and ethics committees that have considered the question, comports with and furthers one of the salutary policy objectives of the rule,” namely, to protect “a represented nonlawyer party from ‘possible overreaching by other lawyers who are participating in the matter.’” In re Disciplinary Proceeding Against Haley. But given the ambiguity of the rule and its potential for creating a trap for the unwary, the Opinion ultimately notes, “we believe the Courts should consider amending the rule to clarify its intended scope and purpose.”
The full opinion can be read here: http://bit.ly/gz6QO2
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About the Association
The New York City Bar Association (www.nycbar.org), since its founding in 1870, has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.