Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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1. While representing a client in a civil matter, is an attorney required to ask an opposing party if that party is represented by an attorney before the attorney communicates with that party concerning the subject of the representation?
2. Is the attorney's obligation affected by the means of communication (written or telephonic), or by who initiates the contact (opposing party or attorney)?
3. May the attorney rely upon the party's statement that he or she is not represented by counsel?
If an attorney has actual knowledge that an opposing party is represented by counsel, he or she may not contact the party about the subject of the representation without the consent of the attorney. Knowledge of such representation can be imputed from the surrounding circumstances and is determined by an objective standard rather than the subjective knowledge of the attorney. If the attorney does not have reason to know whether a party is represented, the attorney is not required to inquire if a party is represented. Nevertheless, it may be prudent to inquire when it is not clear whether the party is represented. However, when the attorney has reason to know the party is represented based on the circumstances, the party's statement to the contrary will not relieve the attorney of the duty to obtain that lawyer's consent before communicating with the party. The obligations of the attorney do not differ based solely on the means of communication. The means of communication, however, can be one fact that may be considered in determining whether the surrounding facts lead to the inference of knowledge or require further inquiry.
Rules 1-100 and 2-100 of the Rules of Professional Conduct of the State Bar of California.
Attorney represents Client A on whose behalf he negotiated a contract with an individual named B. B was represented by counsel during the course of the negotiations that lead to the contractual relationship between A and B. Neither A nor his attorney have had contact with B's attorney since the contract was signed. A dispute arises between A and B two years after the contract is signed. A requests that his attorney send a demand letter to B asking for reimbursement for the loss that A believes he has incurred as a result of B's alleged breach of the contract. Attorney wants to write or call B. The contract does not contain any clause concerning to whom notices should be sent.
Rule 2-100(A) of the Rules of Professional Conduct of the State Bar of California states, "[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer."1 The proscriptions of rule 2-100 come into play whenever a lawyer "knows" the opposing party is represented. In this case, the first question is whether the lawyer "knows" that B is represented by counsel. If the attorney has this knowledge, he may not contact B directly without obtaining the consent of B's counsel.
Neither rule 2-100 nor the definitions set forth in rule 1-100 define the term "know." Nor is there any case in California that has defined the meaning of the term in the context of rule 2-100. In a prior opinion, however, we have opined that, "[w]hether an opposing party is known to be represented by counsel is determined by what a reasonable attorney should have known rather than what the attorney actually knows." (Cal. State Bar Formal Opn. No. 1993-131.) In formulating this opinion, we relied on the decision of the California Supreme Court in Abeles v. State Bar (1973) 9 Cal.3d 603 [108 Cal.Rptr. 359]. In Abeles, defense counsel knew that a law firm had appeared as attorney of record for the plaintiff. In the course of the litigation, the defense attorney and the plaintiff coincidentally ran into each other at a restaurant where they were both dining. The plaintiff told the defense lawyer that the law firm did not represent him and was not authorized to file any lawsuit on his behalf. Based on this information, defense counsel later met with the plaintiff and had him sign an affidavit which repudiated certain allegations of the complaint and expressly stated that he did not authorize the filing of the claim.
In Abeles, the court held that the attorney violated rule 12, a predecessor to rule 2-100. The court found that the attorney knew that the plaintiff was represented by counsel when he met with him despite the fact that the plaintiff expressly denied such representation. The knowledge that the plaintiff had an attorney of record constituted "knowledge" that the party was represented. The plaintiff's representations to the contrary did not eradicate this knowledge.
Knowledge of representation may be inferred even when an attorney believes that the matter in controversy has ended. Los Angeles County Bar Association Formal Opinion Number 411 analyzes the appropriateness of a plaintiff's attorney communication directly with a settling defendant with regard to a potential malicious prosecution action against the defendant's counsel. The opinion states that such a communication is improper without the consent of the settling defendant's attorney. The analysis focused on the fact that even when the litigation proceeds to final judgment, the facts underling the litigation still may be a subject of controversy that require the application of rule 7-103 (predecessor to rule 2-100). The opinion also points out that the circumstances did not suggest that the settling defendant's attorney had ceased to represent the defendant regarding the litigation since no notice of termination of representation was filed.
The test for determining whether an attorney "knows" a party is represented appears to be an objective one which will be applied to the facts surrounding each case. In this case, it is unclear whether the attorney "knows" or a "reasonable attorney" should know that B is represented based solely on the fact that B had a lawyer assist him in negotiating the disputed contract. One could argue that the knowledge that B was previously represented is analogous to the information available to the lawyer in Abeles which the court found to be sufficient to impute "knowledge" of current representation. The answer to this question may depend on whether the attorney who represented B in the negotiations indicated that he would continue to represent B regarding his business or other matters. If the information is sufficient to establish that the lawyer "knows" B is represented, rule 2-100 applies and the lawyer must contact B's attorney regarding the matter and seek permission to deal directly with B.
Assuming the attorney does not have actual or imputed knowledge that B is represented, must the attorney ask B if he is represented prior to initiating communication with B concerning the subject matter of the representation?
There is no express requirement under rule 2-100 that an attorney ask a party if he or she is represented by counsel prior to communication with the party concerning the subject of the representation. Despite the absence of such a requirement, two county bar ethics committees have differed on this question. The San Diego Bar Association has opined, "[i]f an attorney speaks with an opposing party on a matter in controversy, however, his first duty is to ascertain whether or not said party is represented by or has retained counsel." (San Diego County Bar Assn. Ethics Opn. No. 1978-6.)2
The Los Angeles County Bar Association has taken a somewhat different approach to this issue. In Los Angeles County Bar Association Formal Opinion Number 334, the issue addressed is the propriety of an attorney, who represents petitioners in marital dissolution proceedings, sending a particular letter to the opposing party. The letter in question opened with an invitation to the opposing party to call to schedule an appointment with the attorney to discuss the case and concluded with another invitation that stated if the party was not represented by an attorney and would like to schedule an appointment to explore the matter, he or she should contact the attorney's secretary. The opinion concluded that the letter should state that it would be in the best interests of the respondent to obtain independent counsel but, if the respondent insisted on representing him or herself, the attorney would be interested in a meeting. The opinion does not expressly address the propriety of sending a letter to a respondent prior to ascertaining whether the party was represented. The opinion, however, implies that the lawyer need not ask the party whether he or she is represented prior to sending the letter.
Because the courts have held that an attorney has knowledge based on an objective standard and there is no express requirement in rule 2-100, we opine that an attorney is not required to inquire if a party is represented by counsel when the attorney has no reason to know the party is represented in the matter. Nevertheless, it would be prudent in this case for the attorney to ask B or B's prior attorney if B is represented by counsel prior to communication with B concerning the contract dispute. This is particularly true under these facts since the attorney knows a lawyer was previously involved and can easily make the call to B or to B's attorney. Not only is such an approach prudent, but it is also consistent with the rule's guidelines which are designed to prevent "approaches which are intentionally improper . . . [and] approaches which are well intended but misguided." (Mitton v. State Bar (1969) 71 Cal.2d 525, 534 [78 Cal.Rptr. 649].)
In certain circumstances, even if a party denies he or she is represented, the attorney may be deemed to "know" the party is represented if other facts indicate that the party has counsel. In Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal App.3d 116 [230 Cal.Rptr. 461] the court held that the attorney knew when he contacted a corporation's former president that corporate counsel was representing him because the former president remained a member of the board of directors and a shareholder. The court found that the attorney had violated rule 7-103 (predecessor to rule 2-100) despite the fact that the former president told the attorney that the corporation's attorney did not represent him and the corporation's position in the litigation conflicted with his own. The court held that the attorney could not rely solely on the former president's statement because there were other facts which provided the attorney with notice that the former president was represented by counsel.
The considerations governing an attorney's inquiry or the attorney's ability to rely on the party's statements regarding the representation are the same whether the communication is in writing, in person, or by telephone. The means of communication is one factor that may, with other circumstances, lead to the inference of knowledge or the need for further inquiry. The prohibition of rule 2-100 is applicable regardless of whether the communciation is initiated by the party rather than the attorney.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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