PLEASE NOTE: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Governors of the materials published
SUBJECT: Proposed Formal Opinion Interim No. 10-0002 (Communications with Opposing Counsel’s Implied Consent Under the “No Contact” Rule).
BACKGROUND: The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.
DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 10-0002 considers whether consent under the “no contact” rule of California Rule of Professional Conduct 2-100 may be implied, or must it be provided expressly? If consent may be implied, how is implied consent determined?
The opinion interprets rules 2-100 of the Rules of Professional Conduct of the State Bar of California.
The opinion digest states: Consent under the “no contact” rule of California Rule of Professional Conduct 2-100 may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney.
At its February 25, 2011 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 10-0002 for a 90-day public comment distribution.
ANY KNOWN FISCAL/PERSONNEL IMPACT: None
ATTACHMENT: Proposed Formal Opinion Interim No. 10-0002
SOURCE: State Bar Standing Committee on Professional Responsibility and Conduct
DEADLINE: 5 p.m., June 28, 2011
DIRECT COMMENTS TO:
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Ph. # (415) 538-2116
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