See Rule 2-100 (B) (1)- (2). Education: . only to communication about subject matter A. an adverse attorney should not communicate without consent with inside counsel who is part ofthe companysconstituent group for the matter who participated, for instance, in giving business advice or in making decisions that gave rise to the dispute; contacting an organizations in-house counsel after being asked not to might violate the no-contact rule; and. Cavallaro v. United States, 153 F. Supp. Sys. Therefore, it is always imperative for a practitioner to look for precedent in the controlling jurisdiction and, failing that, look for persuasive case law or secondary authorities (like the Restatement) elsewhere. Rule 4.3. 10. Networks, Inc. v. Atl. 2002) (rejected common interest privilege because one party was not represented by counsel); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. But there are also additional requirements to bear in mind specific to the common interest flavor of privilege. Some judges might use one or more of these terms relatively loosely, without strictly distinguishing among them. In doing so, this article will review some situations in which the common interest privilege is likely to arise, including some scenarios particularly pertinent to this audience, such as product defect litigation and insurance disputes. 4.3 Dealing with Unrepresented Person. . {{currentYear}} American Bar Association, all rights reserved. Attorney Sondra Harris notes: "It is important not to overreach or try to make an agreement 'too good' when . A lawyer may not make a communication prohibited by this Rule through the acts of another. The common interest privilege has been tested in cases beyond the M&A context as well. 0 1980)). Such unrepresented parties are known as pro se litigants.. The phrase cause or encourage is not found in the Model Rules, and can make a significant difference when the client or Texas lawyer thinks the other lawyer is the problem (as is so often the case). e (Am. a. Instead, the common interest privilege is basically an expanded version of the attorney-client privilege. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 generally does not prohibit outside counsel fromcommunicating ex parte with an opposing partysinside counsel about the subject of the representation. To increase the odds that a court will honor a claim of the common interest privilege, the following pointers can help. "It is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. he never gave up, even with things seemed the darkest. Communications Exempt from Filing Requirements 108 Rule 7.06. The Rules of Professional Conduct / NYSBA NY Rules of Professional . R. Prof. C. 4.3(a) is Karen is a member of Thompson Hines business litigation group. Moreover, with common interests on a particular issue against a common adversary, the transferee is not at all likely to disclose the work product material to the adversary.21. The common interest attorney-client privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines. See, e.g., La. Texas Rule 4.02(c) prohibits contact with employees with managerial responsibility regarding the matter of representation and employees whose acts or omissions would make the company vicariously liable. In re JP Morgan Chase & Co. Sec. 652719/2016, 2019 WL 1243089 (N.Y. Sup. 5-200 (Trial Conduct) 3.4 (Fairness to Opposing Party & Counsel) 5-220 (Suppression of Evidence) 5-310 . Id. See Rule 4.4. In sum, the common interest attorney-client privilege and the common interest doctrine can overlap in litigation and are in a sense related, but practitioners should be sure to avoid conflating these separate lines of cases. In some circumstances, however, a party represented in one case may be deemed represented in another related case.Ftn4 Consent Exception: After an attorney requests the party's attorney to consent to the proposed contact, Ret. Kenneth S. Broun et al., McCormick on Evidence. Negotiates injury settlements with both attorney represented claimants and unrepresented claimants. The trial court denied defense counsels motion to disqualify plaintiffs counsel, but the Texas Court of Appeals reversed (relying on ABA Formal Ethics Opinion 95-396) and held that if retained counsel has entered an appearance in a matter, whether civil or criminal, and remains counsel of record, with corresponding responsibilities, the communicating lawyer may not communicate with the person until the lawyer has withdrawn her appearance. . See, e.g., Semsysco GmbH v. GlobalFoundries, Inc., No. While the. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. 2007) (noting that members of the community of interest must share at least a substantially similar legal interest). The trial court agreed, ruling that discovery was permissible. If the procurement officer says, You know, we are getting close to being done on this contract, but before we can finalize it I am going to have to run it past legal, then that company remains unrepresented on that matter so far as you know. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. See Texas State Bar Ethics Committee Opinion 528 (April 1999) (determining Texas Rule 4.02 did not apply because the person the opposing attorney contacted was not involved in management decisions related to the litigation and will not be a witness who could make the organization vicariously liable because of his statements, acts, or omissions.). [7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. In other states, however, a lawyer is free to encourage another not under the lawyers control to contact the opposing client directly. American Bar Association Some courts on the restrictive end of the spectrum have held that premerger negotiations between separate entities are not protected by the common interest privilege. As such, the precise contours of the common interest privilege are not fully settled across the country, and future cases will be needed to bring further clarity to this area of the law. 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 in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. 80, 2016 WL 3188989 (N.Y. June 9, 2016). Corporate Counsel Section, State Bar of Texas - Spring-II Edition 2013 Newsletter. This question might come up in a couple other ways, too:when in-house counsel wants to contact an opponents outside counsel, who must decide whether she can participate in the communication; or whenin-house counsel for one party wants tocommunicate with in-house counsel for another party, when both are represented by outside counsel. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. 21. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership. A lawyer may not make a communication prohibited by this Rule through the acts of another. 34. In confirming thata lawyer is generally permitted to communicate with a corporate adversarys in-house counsel about a case in which the corporation has hired outsidecounsel, the Virginia State Bar Associations Standing Committeeon Legal Ethics referred to the purpose of Rule 4.2. Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation such that the insurer is entitled to the defense counsels materials. 1998). 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. Yet a notable exception is New York, which recognizes the common interest privilege only where litigation is reasonably anticipated.27, The common interest privilege only applies where each separate client group has its own attorneys. The inability to direct another to do what the lawyer cannot was discussed in Texas State Bar Ethics Committee Opinion 600 (August 2010), which stated that a government attorney must not only limit his or her own communication with represented parties, but also communication of non-attorneys whom the lawyer directly supervised: [A] lawyer for a Texas governmental agency is not required to limit communications by the agencys enforcement officers who are not subject to the lawyers direct supervisory authority with regulated persons who are represented by lawyers. Opinion 492 agreed with the city attorneys position: [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply. All rights reserved. United States v. Schwimmer, 892 F.2d 237 (2d Cir. Comment | Table of Contents | Next Rule 8, 2012) (potential merging parties had common interest in determining whether their products would infringe). See, e.g., Regents, 101 F.3d at 1386 (The privilege need not be limited to legal consultations between corporations in litigation situations, however. 7. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. {{currentYear}} American Bar Association, all rights reserved. [1] Aguilar held that an attorneys contact with an expert retained by opposing counsel (whom the attorney actually hired to serve as his own expert witness, effectively depriving the opposition of its expert) not only violated Rule 4.02(b), but also that it constituted sanctionable discovery abuse under Texas Rule of Civil Procedure 215.3. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.); Swidler & Berlin v. United States, 524 U.S. 399, 40611 (1998) (holding that the attorney-client privilege survives even death and noting that the U.S. Supreme Court rejects using a balancing test in defining the contours of the privilege); Kenneth S. Broun et al., McCormick on Evidence 87, at 12122 (John W. Strong ed., 4th ed. Legal doctrine that impedes frank communication between buyers and sellers also sets the stage for more lawsuits, as buyers are more likely to be unpleasantly surprised by what they receive. 2001), affd, 284 F.3d 236 (1st Cir. Likewise, the ABAsFormal Op. To the contrary, they were in the initial stages of becoming parent and subsidiary.); Morvil Tech., LLC v. Ablation Frontiers, Inc., No. As for what types of legal interests qualify, compliance with particular laws is an easy example of a purely legal interest.25 Other situations, where both legal and commercial interests are intertwined, present closer calls. 1987) (broad view to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. Model Rule 4.3 expressly prohibits the lawyer from giving legal advice to an unrepresented person (other than the advice to get a lawyer). ABA Formal Ethics Opinion 06-443 (August 5, 2006) concludes that it is ethically proper for a lawyer to go around outside counsel to get to in-house counsel. Taking the logic one step beyond the joint defense privilege brings us to the heart of this article: the common interest privilege allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counselbut this time without the requirement of active litigation (in most courts, at least).11 The validity of an assertion of a common interest privilege might not be tested until litigation arises, but the allegedly privileged communications can occur long before any such litigation arises or is even anticipated.12. Tel. Cal. . Restatement (Third) of the L. Governing Laws. The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. 31. . Committee on Professional Ethics. . Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer). 4.3.Dealing with Unrepresented Person. or otherwise inconsistent with the proper tone of a professional communication from a lawyer or paralegal [rule 7.2-4 of . The defendant processor attempted to shield some of its communications with the plaintiff against discovery by one of the defendant manufacturers. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyers client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. E-Tailer Liability for Defective Products Sold by Third-Party Vendors, Insurance in a Post-Pandemic World: New and Renewed Challenges, American Bar Association Solicitation and Other Prohibited Communications 101 Rule 7.04. This is not surprising because these extensions of the attorney-client privilege are relatively new in the case law and the courts are still working through the fine distinctions. Visual Scene itself cited decisions from various federal courts, including the U.S. Courts of Appeals for the Third, Seventh, Ninth, and D.C. Circuits.22 Similar cases can be found in many other courts across the country. 28. Mass. /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. 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. Conversely, some courts have recognized that, in a coverage dispute, insurers are entitled to discover at least some of the insureds counsels materials from the underlying case. When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship. you meet with the pro se party. . The purpose of this rule is to prevent lawyers from trying to hire another partys expert, and was relied on in Aguilar v. Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to discourage such communication. Accordingly, the common interest doctrine can be invoked both offensively (as a sword by the insurer against the insured) and defensively (as a shield by the insurer and the insured jointly against the third-party claimant). Rule 7.01. Teleglobe, 493 F.3d at 366 ([C]ourts can afford to relax the degree to which clients interests must converge without worrying that their attorneys ability to represent them zealously and single-mindedly will suffer.); Regents, 101 F.3d at 139091 (substantially identical interest in protecting patent). It lays out three requirements for communicating with an unrepresented party: [A] lawyer shall not state or imply that the lawyer is disinterested. 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. The meeting was held. hb```b`` b`a``d@ AfV8\ &0"utB63A E@$o. ABA Formal Opinion 472 (2015) The ABA Standing Committee on Ethics and Professional Responsibility released an ethics opinion addressing the obligations of a lawyer when communicating with a person who is receiving limited-scope representation. See Discovery Order No. hbbd```b``"IO L;"'$3\& `5@`vddbHc$?f`{ $:$j6Jqh8Pq $4 %PDF-1.7 % Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. 27. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Rule 4.3: Dealing with Unrepresented Person. 5. 23. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is . "Party" can include organizations and their officers, directors and managing . Readers of this article are surely familiar with the basic elements of the attorney-client privilege: confidential communications between an attorney and a client for the purpose of giving or receiving legal advice are generally privileged against discovery in litigation.1 This privilege is widely regarded as the oldest and most venerable of all privileges, and courts respect the boundaries of the attorney-client privilege when it comes to discovery disputes.2. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. This policy lubricates business deals and encourages more openness in transactions of this nature.). The Committee recommends that if the lawyer has reason to believe that an unrepresented person . Committee held that it was improper for an attorney representing a party seeking a divorce to confer with an adverse party for the purpose of persuading the adverse party to . This article will examine the nuts and bolts of the common interest privilege. communicate to counsel and parties of the cases set on the same trial calendars when they know . Thus, in litigation involving more than two parties, it is conceivable that overlapping alliances can form, each of which is protected by a joint defense or common interest privilegeeven though the members of each privileged group are otherwise opponents. and transmitted in writing. 14. %%EOF There, a labor organization employed an attorney to negotiate and resolve workplace issues. Parties who are represented on a limited representation basis are considered unrepresented for purposes of this Rule, unless written notice of the limited representation is provided to the attorney seeking to communicate with such party. The seminal case in this area is United States v. Kovel, 296 F.2d 918, 919 (2d Cir. See Model Rules of Prof'l Conduct r. 4.3. In In re News America Pub., Inc., supra, the defendant wrote a letter claiming he was no longer represented by any attorney in this matter and asked for a meeting with plaintiffs counsel. 18. Per Official Comment 2 to Texas Rule 4.02, consent to direct contact may be implied from the circumstances. Communications Concerning a Lawyer's Services 96 Rule 7.02. See, e.g., Allied Irish Banks, PLC v. Bank of Am., N.A., 252 F.R.D. Of course, there is often a fundamental question as to whether the defense attorney is representing just the insured or both the insured and the insurer. When attorneys communicate with each other subject to a common interest defense privilege, they should also be in the habit of marking their communications as such. To be sure, communications between the plaintiff and the defendant processor on many other issues were probably not privileged because those two parties were actively litigating against each other regarding the defendant processors alleged liability. More importantly for purposes of this article, courts have also recognized the co-client or joint client privilege, which extends the attorney-client privilege to include additional parties without the risk of waiver.6 Where multiple clients retain the same attorney(s) to represent them, communications among the multiple clients and the shared attorney(s) remain insulated from discovery. 1985) (identical, not similar interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1985) ([I]t is apparent that Cities did not waive the work product privilege attached to these documents by disclosing the documents to Gulf pursuant to the merger agreement. {{currentYear}} American Bar Association, all rights reserved. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. Rule 4.2. The common interest privilege is an extension of the attorney-client privilege. the lawyer knows to be employed . See Restatement (Third) of the L. Governing Laws. Karen is a member of Thompson Hines business litigation group. 1. Likewise, the two defendants presumably would have been able to invoke a joint defense privilege to shield their communications against the plaintiff. Depending on the importance of the communication in question, such waiver can result in great harm to a case. endstream endobj startxref i couldnt recommend him more. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. The parties themselves should not directly communicate with each other and probably should not communicate directly with the other parties attorneys either. 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. It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently. In Opinion 472, the committee addressed the obligations of a lawyer under Model Rule 4.2 (Communicating with Persons Represented by Counsel) and Model Rule 4.3 (Dealing with Unrepresented Person) when a pro se litigant is receiving limited-scope representation, a form of practice permitted under Model Rule 1.2(c).
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