Communication with Opposing Counsel

    Rule 2-100(A) of the Rules of Professional Conduct states:  “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”

    Having worked as an attorney for the State Bar of California, I am sometimes asked for a  favorite State Bar war story.  One has to do with rule 2-100 prohibiting an attorney from speaking directly with an opposing party about the case if the lawyer knows that person is represented by an attorney.

    It also has to do with the dynamics of any large non-profit organization where management changes frequently and abruptly, enabling a continuum of managers to disclaim responsibility for hiring or failing to fire a particular employee who then attaches to the organization for its lifetime and develops barnacle-like problem solving skills and work ethic.

    So, as the story goes, a staff attorney/barnacle at the State Bar was assigned to handle a complaint against an attorney.  “Joe” complained that attorney “Bob” called him to talk about his case even though Bob knew that Joe had an attorney.  Following procedure, a letter was sent to Bob, advising him of the complaint and inviting him to respond.  Bob, as the attorney being investigated, hired an attorney to represent him in the investigation being conducted by the State Bar in response to Joe’s complaint.  Legend has it that the staff attorney got frustrated that Bob’s attorney didn’t respond fast enough so she contacted the Respondent directly to get a response thereby violating the rule she was seeking to enforce.

    If you’ve read Alec Baldwin’s book A Promise to Ourselves or know someone who has been involved in a bitter divorce (is “bitter divorce” redundant?) then you know one of the biggest complaints about marriage dissolution proceedings is the stilted communication between the parties.  I can’t tell you how many times I’ve heard the complaint from one spouse saying that the other spouse’s attorney won’t return his or her phone call or otherwise communicate.  Even though it may be tempting at times to pick up the telephone and call the other side directly, such communication is strictly prohibited by rule 2-100 of the Rules of Professional Conduct.

Mara J. Mamet

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