Communication with represented persons: Be a backseat driver

Imagine you are corporate counsel for a national real estate company that owns and operates malls. One of your malls has landed in litigation against a large tenant. The litigation has grinded its way through months of expensive battles and there is no end in sight.

One day your vice president of operations calls you and — exasperated by the lack of progress being made by the lawyers — proposes that he deal directly with the president of the tenant company to reach a “business resolution” amenable to both sides.

He does not want you or outside counsel to be directly involved in the settlement dialogue, but he does want your behind-the-scenes assistance. He asks: “Can you help me?”

Your ethical analysis should begin with the “No Contact” Rule, stated in American Bar Association Model Rule 4.2. It prohibits a lawyer from communicating with a person the lawyer knows is represented by counsel, unless that person’s counsel has consented to the communication or the communication is authorized by law.

It does not matter that your vice president of operations, and not you, proposes to make contact with the other party. ABA Model Rule 8.4(a) prohibits a lawyer from using an intermediary to accomplish what that lawyer himself cannot do.

Your analysis is far from over, however. Your experience tells you that it is not unusual for parties in litigation to talk directly with one another outside of the presence of counsel. And your ethical duty to provide competent representation to your client tells you that there must be something you can and should do to help your vice president in dealing directly with the other side.

A tension thus arises between your commonsense, the duty and desire to advise your client, and the prohibition against using another person to do what the ethical rules prohibit you from doing.

To ease this tension, in August 2011 the ABA released Formal Opinion 11-461, which examines the “limits within which it is ethically proper under the Model Rules of Professional Conduct for a lawyer to assist a client regarding communications the client has a right to have with a person the lawyer knows is represented by counsel.”

After examining Rules 4.2 and 8.4(a) and a number of authorities commenting on those rules, the ABA’s Standing Committee on Ethics and Professional Responsibility came out strongly in favor of a client’s right to receive advice and assistance from his lawyer concerning communications the client is legally entitled to make with a represented party.

The committee concluded:

“[W]ithout violating Rules 4.2 or 8.4(a), a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who — the lawyer or the client — conceives of the idea of having the communication.”

“Substantial assistance” regarding a “substantive communication” obviously means more than simply assuring your vice president that he may proceed in reaching out to the other side as he proposes, or that a business resolution is, from your vantage point, wise. The committee offers far more proactive examples of permissible assistance:

•           Advising a client on how to conduct settlement negotiations, the topics or issues to be covered, and the goals or objectives to be reached.

•           Reviewing, revising or drafting a set of talking points to be used in discussions with the other side.

•           Reviewing, revising or drafting a letter to be sent under the client’s name to the other side.

•           Drafting the basic terms of a proposed settlement agreement or drafting the formal agreement for execution.

The farther down the list you go, of course, the more actively you are interjecting yourself into the communication between your client and a represented adversary — all the way to the point of authoring the document that could conclude the litigation.

Yet each of the examples, in the committee’s view, does not violate Rules 4.2 and 8.4(a). Notice, too, that in each of the examples, the committee does not distinguish between who initiates the communication. The lawyer is free to review a communication that the client has prepared, but he is also free to draft the communication himself for handoff to the client.

If, however, you now appear sprung from the constraints of the “No Contact Rule,” the committee cautions against “overreaching.”

The committee lists only a few examples of overreaching (assisting one’s client in securing from the other side an enforceable obligation, disclosure of confidential information or admissions against interest), and it declines to embrace conventional terminology like “scripting” or “masterminding” as useful or helpful statements of what kinds of communications are prohibited.

It does, however, state that lawyers must take care not to violate the “underlying purpose” of Rule 4.2, which is to protect the client-lawyer relationship from interference or undue pressure by other attorneys.

That, too, may seem like a vague statement of the “No Contact” prohibition, but, at the very least, it advises the lawyer to act with elevated prudence and caution the further he injects himself into the communication between client and represented adversary.

Thus, for example, the committee states that a lawyer must “at a minimum” advise the client to encourage the other party to consult with counsel before entering into obligations, disclosing confidential information or making admissions. If the lawyer has taken the ultimate step of drafting the settlement agreement, the attorney “should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement.”

In Formal Opinion 11-461, the committee has recognized the practical wisdom of allowing lawyers to take a backseat while their clients try to break an impasse or resolve a dispute amicably.

Clients are often eager and ideally situated to do so. But the opinion also recognizes that lawyers may still have an important role to play from the backseat and explores the ethical limits of performing that role.

Two words of caution. First, although formal opinions serve as influential guides in defining ethical duties, especially in jurisdictions like Massachusetts that have adopted the model rules as their professional rules of conduct, Formal Opinion 11-461 is recent and it remains to be seen whether any jurisdiction will expressly adopt the conclusions reached by the committee.

Second, at least one jurisdiction, Minnesota, has publicly declined to follow the opinion, concluding that “scripting” communications or drafting agreements for clients to present to a represented adversary encourages a level of involvement by the lawyer inconsistent with the protections offered by Rule 4.2.

Thus, prudence would dictate that you approach the opinion as a modest narrowing of the “No Contact” Rule. The more control you exercise from the backseat, the more strongly you should advise your client to encourage the other party to talk with its lawyer before doing anything that will impact its legal rights, and to include in any document that the other party will be asked to execute a conspicuous disclaimer that it should consult with its attorney before signing it.

In that way, your client can safely and effectively reap the benefits of a backseat driver.

Boston lawyers Laura E. D’Amato and Derek E. Domian are members of Goulston & Storrs’ professional liability group and can be contacted at [email protected] and [email protected].