Unbundled Services And The No-Contact Rule

The Vermont Supreme Court found a Rule 4.2 violation and imposed a 30-day suspension notwithstanding the fact that opposing counsel had not entered an appearance in divorce litigation

We agree with the hearing panel’s conclusion that although respondent did not have actual knowledge that husband was represented at the outset of the call, respondent gained such knowledge during the call. See V.R.Pr.C. 4.2 cmt. [3]. Respondent’s blame-shifting assertion that the root of the problem is the concept of “unbundled” representation is unpersuasive. Regardless of the legitimate ethical and procedural concerns associated with partial representation, the facts of this case do not support a claim of factual or ethical ambiguity. The notice of appearance, in which husband stated that he would be representing himself, did reasonably suggest that husband was no longer represented by counsel in the divorce matter writ large. However, husband clarified the issue of representation, and respondent was no longer entitled to rely upon the pro se notice of appearance as soon as husband told him, “let me get a hold of my lawyer.” Respondent was required to immediately end the call upon this statement, but he instead told husband that his lawyer need not be present for the meeting. This was a violation of Rule 4.2.

Respondent first asserts that he did not violate Rule 4.2 because “nothing of substance related to the divorce was discussed.” However, the rule prohibits “communications with any person who is represented by counsel concerning the matter to which the communication relates.” V.R.Pr.C. 4.2 cmt. [2]. We agree with the hearing panel that Rule 4.2 does not on its face distinguish between substantive and non-substantive content in its prohibition of communicating with a represented party. The conduct at issue here is the communication about the divorce after respondent was told that husband wanted to talk with his lawyer, not respondent’s initial placing of the call. Respondent’s argument therefore fails.

Next, respondent argues that ending the call after husband’s statement “would have been both a rude and an unnatural way to conclude the conversation.” We are unpersuaded by this argument. Respondent would have been well within the confines of Rule 4.2 to express surprise at husband’s representation status, inform husband that the conversation must end due to respondent’s ethical obligations, and indicate that respondent would thereafter communicate through husband’s lawyer. Suddenly hanging up the phone without reason might be considered rude and unnatural, but respondent had both a valid reason and the inherent convenience of laying the blame for any perceived slight upon the professional conduct rules. Respondent’s stated desire to avoid rudeness simply does not outweigh his ethical obligations.

Also unpersuasive is respondent’s final claim that he did not violate Rule 4.2 because nothing he said during the call “could be construed as an attempt to coerce [h]usband to forego representation as the divorce issues moved on.” Attempted coercion is not an element of a Rule 4.2 violation. The express purpose of Rule 4.2 is to “contribute[] 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.” V.R.Pr.C. 4.2 cmt. [1]. Respondent told husband, “technically [your lawyer] doesn’t have to be here” for a meeting after being told that husband wanted to contact his lawyer. Respondent then proceeded to arrange the meeting without said lawyer. Therefore, even if respondent did not act coercively (an issue not addressed by the hearing panel), respondent overreached and violated Rule 4.2 by continuing to communicate with husband about the divorce once he learned husband wished to speak with his lawyer.

Sanction

More significant is respondent’s refusal to acknowledge the wrongful nature of his conduct. In his response to husband’s lawyer’s email objecting to the phone call, respondent sent a curt email denying wrongdoing, insisting that husband was representing himself, and refusing to agree not to contact husband directly again. He continues to argue on appeal that he did nothing that violated the professional conduct rules in communicating with husband after gaining actual knowledge of husband’s representation status, misconstruing the Vermont Rules of Professional Conduct to allow “natural, non-threatening, non-coercive” communications when in fact all communications with represented parties must immediately end upon learning that the party is represented by counsel. Respondent further lays blame on the concept of “unbundled” legal services rather than his own actions.

To respondent’s credit, there was no evidence presented to the panel that respondent had a dishonest or selfish motive. This absence of motive weighs in respondent’s favor. We also acknowledge that respondent did not contact husband again after the phone call. The misconduct in question is strictly limited to a portion of one conversation. Respondent’s strongly worded email reply to husband’s lawyer reflected his belief that the ethical rules would have permitted his continued contact with husband, but his actions demonstrated his compliance with husband’s lawyer’s directive.

Respondent was also fully cooperative in the discipline process. (Mike Frisch)