Two of the defendants were involved with manufacturing the glass, while the third defendant processed the glass. Seealso Restatement (Third) of the Law Governing Lawyers 100 cmt. Finally, remember that the attorney-client privilege is usually a creature of state, not federal, law.35 While the fundamentals of the attorney-client privilege are long settled and uniform among jurisdictions, there are important differences among forums regarding the relatively novel common interest privilege. Because there can often be a need for lawyers to include outside individuals as part of their team for the purpose of providing the client the best and fullest representation, the law has created many exceptions to the rule that the sharing of an otherwise privileged communication can destroy the privilege. The plaintiff actually freely conceded [that] its interests in this litigation are opposed to those of the party with whom it claimed a mutual privilege. 23. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. Education: CBA's Rule 4.3 addresses "communication with an unrepresented person" and can be seen here: Rule 4.3 Communicating with an Unrepresented Person (a) In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Ct. Mar. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. Prohibited Employment 110 VIII. In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. Specifically, Rule 4.3 provides, in part, that when communicating with an unrepresented person on behalf of a client, a lawyer is prohibited from stating or implying that the lawyer is disinterested. For example, when a third party is necessary to convey legal advice (such as an accountant helping to translate dense financial information for the benefit of the client, or a Russian translator communicating with a non-English-speaking client), many jurisdictions refuse to find that engaging in communications or sharing documents with such a third party results in waiver.4 And when a third-party contractor is the functional equivalent of an employee, communications among an entity, the entitys attorney, and the entitys functional employee typically remain privileged.5. In this vein, some courts have recognized that third-party claimants are not entitled to communications exchanged among the insured, its counsel, and the insurer.32 Thus, the insurer is often not considered a third-party interloper that destroys the privilege. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. As noted earlier, New York has adopted a particularly narrow version of the common interest privilege by including the requirement of anticipated litigation, and other jurisdictions disagree about the meaning of common, among other issues. Mun. for the purpose of conferring with or advising another lawyer . communicate to counsel and parties of the cases set on the same trial calendars when they know . Significant in all analyses of Rules 4.02 and 4.03 are the limitations that the lawyer knows the other party to be represented in the subject of the representation, i.e., the matter. . sophistication of the unrepresented party, as well as the setting in which the explanation occurs;1 If you communicate with the unpresented party, obtain the party's consent to continuing the conversation; You may recommend that the unrepresented party engage the services of their own lawyer; Do Not Give Legal Advice 57, In re Blue Cross Blue Shield Antitrust Litig., MDL No. 1998). the attorney is positioned to take advantage of the unrepresented person in ways that would not be possible if the person were represented; helping the unrepresented person could frustrate legitimate interests of the lawyer's client; and contacts between the lawyer and the unrepresented person most often occur outside of the courthouse. 10. Rule 4.2 states " [i]n representing a client, a lawyer shall not 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 consent of the other lawyer or is authorized by law to do so." 407, 417 (N.D. Ill. 2006) (While Noranda and Falconbridge shared a common business interest, they also shared a common legal interest regarding compliance with antitrust and other laws affecting the sale of sulfuric acid.). See also Restatement (Third) of the Law Governing Lawyers 100 cmt. Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. His practice primarily focuses on business litigation, financial, insurance, and products liability matters. 2005) ([B]y virtue of assuming the functions and duties of [a] full-time employee, the contractor is a de facto employee of the company.); In re Flonase Antitrust Litig., 879 F. Supp. Family: Wife, Rosemarie; and sons, John (22) and Joseph (17). Members are entitled to six clinical sessions per calendar year. New York State Bar Association. When encountering different courts discussions of the co-client, joint defense/plaintiff, and common interest privileges, attorneys might find that the nomenclature varies from one jurisdiction to another. 1965). /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person/comment_on_rule_4_3, Rule 4.3: Dealing with Unrepresented Person. In Part I of this article, "When You Can Contact Others Who Are or Were Represented by Counsel" (NYLER April 2015), we explained the basic guidelines as to when a lawyer is allowed to directly contact another party who is represented by counsel under Rule 4.2 of the New York Rules of Professional Conduct (NYRPC)the No-Contact Rule. Is in-house counsel fair game for ex parte contact by opposing counsel? Evaluates third-party injury claims. This site uses Akismet to reduce spam. 2001), affd, 284 F.3d 236 (1st Cir. {{currentYear}} American Bar Association, all rights reserved. 187 (N.D. Ill. 1985). Subparagraph (b) prohibits a lawyer from contacting a person . [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. . Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. . 13. It provides that "a lawyer shall not communicate about the subject of a representation with a party" who the lawyer "knows to be represented by another lawyer in the matter" unless the lawyer has the consent of the other lawyer or the contact is "authorized to do so by law." . Networks, Inc. v. Atl. or otherwise inconsistent with the proper tone of a professional communication from a lawyer or paralegal [rule 7.2-4 of . 28. /content/aba-cms-dotorg/en/groups/tort_trial_insurance_practice/publications/the_brief/2020-21/summer/common-interest-privilege-what-exactly-is-it-when-does-it-apply, Tort Trial and Insurance Practice Section, Summer 2021 | The Duty to Protect from Third-Party Harm. Karen is a member of Thompson Hines business litigation group. Ethics, Professional Responsibility and More. The defendant processor attempted to shield some of its communications with the plaintiff against discovery by one of the defendant manufacturers. Direct Communication Between Represented Parties In practice, settlement negotiations are sometimes best facilitated when clients speak to one another directly without lawyers present. Pa. 1997) (The interests of the parties need not be identical, and may even be adverse in some respects.). a. (9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. 18. In answering this question, it is important to distinguish between the common interest privilege, which is the subject of this article, and the common interest doctrine, which often arises in coverage disputes. This is consistent with Texas State Bar Ethics Committee Opinion 474 (June 1991), where city council, through the city attorneys office, had made a settlement offer for an existing dispute. 34. Va. 2008). 1992) (A strong tradition of loyalty attaches to the relationship of attorney and client, and this tradition would be outraged by routine examination of the lawyer as to the clients confidential disclosures regarding professional business.). The no-contact rule is to protect uncounseled persons against being taken advantage of by opposing counsel and to safeguard the client-lawyer relationship from interference, the Committee said. Copyright 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED. Restatement (Third) of the L. Governing Laws. Just as attorneys and clients often state that their confidential communications are subject to the attorney-client privilegesometimes doing so in the subject line of an email or header of a letter or memorandumcommon interest counsel should take the same precautions. Party affiliation: I am cross-filed and will appear on the Republican and Democratic ballots. 1. 8, 2012) (potential merging parties had common interest in determining whether their products would infringe). 2008). The suitable representative could be an attorney or a non-attorney who has the knowledge, skills and abilities to serve as a representative. Co., 619 F. Supp. E. Transmission Corp. PCB Contamination Ins. Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. To ensure accuracy of . 609, 634 (M.D. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person. Ct. App. lawyer's word should be his or her bond. Likewise, the ABAsFormal Op. {{currentYear}} American Bar Association, all rights reserved. Subparagraph (d) of Rule 4.02 makes it clear that a lawyer can discuss a matter with a represented party when the party is essentially seeking a second opinion. appointment at no cost to the party when a suitable representative is the minimum necessary accommodation under Title II of the ADA, and alternative accommodations are inadequate. Having a lawyer for one purpose (or matter) does not mean one has a lawyer for all purposesindeed, when a new matter arises, a party is unrepresented until it makes the deliberate and conscious decision to hire a lawyer. Communications often are not either purely legal or purely not legal in nature. R. Prof. C. 4.3(a) is Transmirra Prods. 308, 311 (N.D. Cal. 2000). 1036, 1047 (D. Del. 29. See, e.g., Op. To avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to email a link to a friend (Opens in new window), West Virginia Lawyer - Tips and Techniques. See Model Rules of Prof'l Conduct r. 4.3. 572 (S.D.N.Y. On the other hand, if the procurement officer says, I was talking about this with a colleague in legal yesterday and she said . Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. To extend the common interests privilege to parties aligned on opposite sides of the litigation for another purpose is not inconsistent with any policy underlying the attorney-client privilege and merely facilitates representation of the sharing parties by their respective counsel.20 Insofar as the plaintiff established that it suffered damages, both it and the defendant processor shared an interest in proving that the defendant manufacturer was liable for some (if not all) of the damages. Rule 4.02(c) defines who the client is when the lawyer is representing an organization, and covers material similar to that found in Official Comments to the Model Rules. The defendant manufacturer argued, with at least some superficial appeal, that the plaintiff and the defendant processor could not claim a joint privilege because they were literal adversaries on opposite sides of the v. in litigation. Comment | Table of Contents | Next Rule Rule 4.2 and its comments describepermissive exceptionsincluding contacts that areauthorized by law (such astheconstitutional right to petition the government)or a court order, or that dont relate to the subject of the dispute. See Rule 8.4 (a). at 44243 (quoting United States v. Am. 4.3.Dealing with Unrepresented Person. 2007-1 (N.Y. City Bar Assn Jan. 1, 2007) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objectivegood faith belief that in-house counsel is acting as entitys lawyer may communicate with in-house counsel of a party known to be represented by outside counsel). They can discuss potential settlement agreements, upcoming hearings, and other matters. Rule 4.02(a) generally provides that, in representing a client, a lawyer shall neither communicate nor cause or encourage another to communicate about the subject of the representation with a person or entity the lawyer knows to be represented by another lawyer without consent of the other lawyer. Model Rule 4.2 states: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer. Executive Committee LAWYER ASSISTANCE PROGRAM LAP is a confidential service outsourced to CorpCare Associates, Inc., to help State Bar members with life's difficulties. Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). 1987) (holding that no waiver of the attorney-client privilege occurred when a patent owner, which was seeking to sell one of its divisions, disclosed its patent attorneys opinion letter to the prospective purchaser: Unless it serves some significant interest courts should not create procedural doctrine that restricts communication between buyers and sellers, erects barriers to business deals, and increases the risk that prospective buyers will not have access to important information that could play key roles in assessing the value of the business or product they are considering buying. For example, in the Visual Scene case from Florida,19 a plaintiff distributor of glass sued three defendants because the glass was allegedly defective. Rule 4.02 prohibits speaking with a represented party regardless of who initiates the contacteven if the represented party calls you, you cannot have a substantive discussion without permission of the other lawyer.