Practice Pointers On Unauthorized Communication

A recent admonition summarized on the web page of the Massachusetts Board of Bar Overseers provides an important practice pointer on Rule 4.2. 

It does not matter if the opposing party wants to talk to the lawyer. Nor does it matter that the opposing party wishes to speak outside of the attorney’s presence.

The respondent represented clients in a property dispute in which their neighbor accused them of causing damage to her property. The respondent’s clients filed a counterclaim against the neighbor accusing her of causing damage to their property. The respondent knew that the neighbor was represented by counsel.

The respondent’s clients called him to complain that the neighbor had recently caused more damage to the property line. The respondent went to his clients’ property to take photographs of the new damage. The neighbor saw him and invited him onto her property. The respondent accompanied the neighbor onto her property and engaged in conversation with her relating to the pending litigation. The respondent did not contact opposing counsel to obtain permission to talk with the neighbor. The respondent suggested the neighbor call her attorney, but the neighbor said she did not want to bother him.

By communicating about the subject of the representation with a person the respondent knew was represented by another lawyer in the matter without first obtaining the permission of that lawyer, the respondent violated Mass. R. Prof. C. 4.2.

The respondent was admitted to practice in Massachusetts in 1970 and had received no prior discipline. The respondent received an admonition for his conduct.

The admonished attorney is not identified by name. The link to 2019 admonitions can be found here.  (Mike Frisch)