August 2020

30 Aug 20

In the US, lawyers are ethically prohibited from contacting a party the lawyer knows is represented (or whose employer is represented) by counsel regarding a matter that is the subject of that representation—unless such counsel consents. In the transactional context, compliance with the rule can be, at best, socially awkward and, at worst, an ethical trap for the unwary.

There’s an enlightening Redline collaboration underway about the practical application of this rule, in which questions like the following are pondered:

In the absence of knowledge that the other side is represented, should counsel insist on not attending phone conferences unless she can confirm that the other side’s lawyer is present or consents?

If a company is “big enough”, shouldn’t counsel assume representation, despite the actual knowledge requirement?

May counsel rely on the assurances of the other side’s non-legal staff that the other side’s lawyer consents to meeting attendance?

As presence is not equal to consent, may counsel direct an email to a represented person so long as the other side’s lawyer is copied?

What about "ghost writing" emails for a client?

The no-contact rule is not without its detractors. Professor Leubsdorf questions why the consent of the represented party is insufficient to waive operation of the rule. The rule anoints the lawyer as the absolute arbiter of whether the client may contact the other side's lawyer, setting up an inherent conflict of interest:

If the lawyer is paid by the hour, he will profit if all communications go through him. In addition, direct communication with opposing counsel may reveal to a client that his lawyer is lazy or uninformed, or that the client’s prospects of success differ from what his lawyer has led him to believe. These possibilities may well bias the lawyer against consenting to direct communications with his client.

All in all, I do not believe that it is justifiable to empower lawyers to decide whether their clients will be able to talk with other lawyers. The rule so providing is not rooted in antiquity, serves no compelling interest, and was probably influenced by an improper desire to protect lawyers against their own clients. Granting the possible dangers of uncounseled communications, it by no means follows that the lawyer is best suited to decide whether a client should risk them, particularly when the client can obtain the lawyer's advice before deciding. In its present form, [the no-contact rule] gives lawyers unnecessary power over their clients' decisions and may lead to conscious or unconscious subordination of the interests of the clients.

John Leubsdorf, Communicating with Another Lawyer’s Client: The Lawyer’s Veto and the Client’s Interests (U. Penn L. Rev. 1979).
Geoffrey C. Hazard, Jr. and Dana Remus Irwin, in Toward a Revised 4.2 No-Contact Rule (Hastings L.J. 2009), have similarly noted the paternalism exhibited by the rule and how it can work against the client’s interests. “By placing complete control of communications in the lawyer’s hands, this approach presumes the role of the traditional, faithful lawyer. But fulfillment of this role is contradicted by the very initiative the client is undertaking—contacting another lawyer after deciding a retained lawyer is not serving the client’s best interests.”

The authors propose reforms to the rule only after first making the case for the rule’s repeal in its entirety, and the case they make is not without merit. "There is a strong argument that the Rule should be repealed and its work done by Rule 4.3—that is, a lawyer should not present himself to a non-client as disinterested, should not give legal advice (except to consult another lawyer), and should not negotiate with a person he knows to be represented."
18 Aug 20

We’re paid to be prophets.

When we study law we are not studying a mystery but a well-known profession. … The reason why it is a profession, why people will pay lawyers …, is that in societies like ours the command of the public force is entrusted to the judges …, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard L. Rev. 457 (1897) (emphasis added).

Contract drafting is an exercise in prediction. We are writing for an intended outcome, based on predictions we make about how a fact-finder, judge or arbitrator will process and construe the language we've written. It is no less true in this endeavor than in any other: collaborating with trusted peers, and opening ourselves up to meaningful challenge, is the best way to refine our craft and improve the accuracy of our predictions.