Murky waters of 'scripting' party-to-party contact

By W. William Hodes

The Daily Record Newswire

In the pantheon of rules of professional conduct governing lawyers, the so-called "no-contact" rule resides in the top tier of importance.

According to that rule, a lawyer representing a client in a litigated or transactional matter is not permitted (with one exception that is beyond the scope of this column) to communicate with a represented opposing party without the consent of the opposing party's lawyer.

The rule is especially telling because it so clearly gives the lie to the notion that the law of lawyering protects only an attorney's own client. Instead, the no-contact rule, embodied in American Bar Association Model Rule 4.2 and its state counterparts, not only protects a client's opponent from being overreached, but also protects the opposing party's lawyer from interference with his relationship with his own client and from having his strategies undercut.

Thus, even if a represented opposing party agrees to communicate outside the presence of his own lawyer or initiates the communication, the other attorney must refuse to engage and refer the party back to his own lawyer for guidance.

Violations of the no-contact rule are enforced not only through the disciplinary system, but also by disqualification of the offending lawyer in a litigated matter. Indeed, the frequency of such disqualifications is second only to disqualification for conflict of interest.

Party-to-party contact

By definition, the law of lawyering does not and cannot restrict the right of nonlawyer opponents to communicate with each other -- businessmen trying to work out some aspects of a deal on their own, for example, or a divorcing couple trying to come to some compromise without the intervention of their respective lawyers.

It follows that lawyers must be permitted to explain this point to their own clients. Competent and zealous representation requires no less, not to mention the duty under Model Rule 1.4 to explain a matter fully to clients and to keep clients informed of important developments.

This is not to say that it is always wise for a represented client to go out on his own and talk to an opposing party; only that it is permissible, and that it is also permissible for a lawyer to so inform his client.

Furthermore, it makes no difference whether the attorney or the client first broaches the subject of direct party-to-party contact. If a lawyer was permitted only to ratify his client's suggestion that the client approach the opposing party, that would penalize unsophisticated or unimaginative clients.

A common example arises when a lawyer makes a settlement offer to opposing counsel and receives no response. Fearing that the opposing lawyer has improperly failed to communicate the offer to his client, the first lawyer is barred by the no-contact rule from making inquiry of the opposing party or sending another copy of the offer directly to the party.

But the first lawyer's client has every legal right to approach the other party to find out about the status of the offer, and the attorney should not be under any restrictions in counseling his client to take such action.

A fly in the ointment

The above regime is in some tension with the well-established rule that lawyers are prohibited from doing through the acts of others what they are prohibited from doing themselves.

Thus, it is clear under Model Rule 8.4(a), for example, that a lawyer worried about whether a settlement offer has been communicated to an opposing party, as above, cannot send an investigator or paralegal to inquire or direct a secretary to mail a copy without identifying the lawyer as the sender.

Yet despite a few early and isolated authorities that applied Rule 8.4(a) to the acts of a lawyer's client, that view never gained much traction and is almost universally rejected today. The difference is that in the examples just given, the attorney is the one communicating with the represented party, exactly as prohibited by the no-contact rule, and "through" the action of his own agents, exactly as prohibited by Model Rule 8.4(a).

In the examples given earlier in this column, on the other hand, it was the client communicating with the opposing party -- and of course the lawyer is the client's agent, not the other way around.

Does 'scripting' go too far?

Once it was established that a lawyer could counsel his client to contact a represented opposing party directly, the question then became whether the attorney could assist the client further by making the communications more effective.

That brought the tension with Rule 8.4(a) back into play, because it was sometimes argued that if a lawyer "scripted" or "masterminded" the upcoming contact, then the communication was really that of the lawyer, simply using the client's signature on a letter or the client's voice box in a discussion.

But the argument to the contrary was stronger: If a client drafts a letter to his opponent and the lawyer advises the client on how to make it more effective, or the lawyer gives the client some "bullet points" to focus on, that is the functional equivalent of "preparing" a client to testify at a deposition or trial.

The ultimate communications are those of the client, but the lawyer uses his legal skill and knowledge to suggest ways in which the communication will better "fit" the legal world.

In August 2011, the ABA issued Formal Op. 11-461 and, after summarizing earlier authority (including earlier ABA pronouncements), concluded that an even more lenient view of scripting should apply.

Even after conceding that clients are among the "others" who cannot be used as fronts for a lawyer's otherwise improper actions, the opinion stated that it is more important to protect the ability of attorneys to assist their clients in actions that are legal for the client to take.

Moreover, as long as the "scripted" letter or conversation is not presented to the other side with the help of the lawyer, there is little danger that the other client will be overreached and little danger that the other lawyer will be undercut.

After all, there is nothing preventing the represented client from rebuffing any overtures from the other side, or from showing any communication or describing any conversation to his own lawyer.

Indeed, Opinion 11-461 went so far as to permit a lawyer to draft a proposed agreement that his client could show to the other party in order to seek the other party's signature.

That may have been a bridge too far, however. After acknowledging that some jurisdictions would not permit that level of "scripting," and after agreeing that presenting a document for signature does implicate both of the policies advanced by the no-contact rule, the opinion ended with the strong warning that, in such a situation, the client must be told to urge the other party to consult with his own lawyer and that any signature page must contain a conspicuous notice to the other party that he should consult his own counsel before signing.

In practice, therefore, it may be said that Formal Op. 11-461 removes all restrictions on lawyers assisting their clients in scripting written or oral communications with represented opposing parties, except when documents having legal force are to be presented to the other side for signature.

In those situations, the caveats swallow the rest of the opinion: It still should be considered improper for an attorney to use his client to obtain an opposing party's signature on a document without the knowledge of the other lawyer.

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W. William Hodes is a solo practitioner and consultant who specializes in legal ethics and the law of lawyering. Based in Indianapolis, and Lady Lake, Fla., he is a law professor at Indiana University, where he has taught for 20 years.

Published: Fri, May 18, 2012

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