By Travis Pickens
New ABA Ethics Opinions
Advising Clients Regarding Direct Contacts with Represented Persons, Email and Renegotiating Fees
The Supreme Court of Oklahoma has the sole, nondelegable, constitutional responsibility to regulate the practice, ethics, licensure and discipline of lawyers. Their opinions regarding application of the Oklahoma Rules of Professional Conduct are the ultimate answer on any question. In the meantime, practitioners rely upon guidance from my office, or ethics opinions from the Oklahoma Legal Ethics Advisory Panel, treatises, ABA articles and the like, or simply their own research. All such guidance is advisory and non-binding. Another such source of guidance that appears to be little known is the ABA’s Standing Committee on Ethics and Professional Responsibility, and the formal ethics opinions they issue. The committee produces ethics opinions pertaining to the ABA’s Model Rules of Professional Conduct, most of which are valuable to Oklahoma lawyers as the Oklahoma Rules of Professional Conduct were adapted directly from the Model Rules.
The Standing Committee has recently issued four new formal opinions, relating to direct communication between parties, duties regarding email communications and renegotiating an attorney fee. This article will focus on the most interesting opinion discussing party to party communications, one which will have broad application to litigators and transactional lawyers involved in negotiations. Brief synopses of the other opinions are included at the end of this article. You should read them all, especially Formal Opinion 11-459 which advises a lawyer under Model Rule 1.6 (a) typically has a duty to warn his or her client that a third party (say, an employer) may have a right to locate and read emails on the employee’s business computer or other device.
Formal Opinion 11-461 “Advising Clients Regarding Direct Contacts with Represented Persons” deals with Model Rule 4.2.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
(The Oklahoma version of 4.2 is identical.)
The committee’s summary of the opinion states:
Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.
The purpose of the rule of course is to keep parties from making enforceable obligations, admissions or divulging confidential information without the benefit of their own counsel’s advice. Lawyers do not often know whether or how they can assist a client with these communications. We know that parties may speak directly to each other, but we are not sure how and to what extent counsel may be involved in the planning and strategy of those communications.
The ABA committee concluded the lawyer may advise the client about the content of the communications that the client proposes to have with the represented person. For example, the lawyer may review, redraft and approve a letter or a set of talking points. The lawyer may also draft the basic terms of a proposed settlement agreement, or even more remarkably, a formal agreement ready for execution. But, it went on to say that the lawyer must not overreach and this is where you should pay particular attention. Examples of overreaching would include “assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.” At a minimum, a lawyer must advise her client to “encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information.” The opinion further advises that “[i]f counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel 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.”
It would be wise to cover communications between your client and the opposing party carefully in person and in writing, when you first begin representation. Make sure you and your client know and respect the boundaries. As an Oklahoma lawyer, my practical counsel is to proceed very carefully, and more conservatively than the outer bounds of this opinion, at least until there is some specific Oklahoma guidance. There is not a recent Oklahoma ethics opinion on this precise point, although Comment  to ORPC Rule 4.2 states “[p]arties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.”
I foresee many opportunities for argument and accusations regarding the motives and methods used by a client and lawyer in obtaining admissions, information, and especially executed settlements from the opposing party that have not been provided to the opposing lawyer in advance, no matter how conspicuous the “warning” language on the document. I also foresee the potential for related bar complaints, warranted or not.
As a defensive precaution, you should counsel your clients to never agree, admit or divulge anything without the benefit of your prior advice, no matter what they are presented by the opposing party. Do not let them be surprised and sign something without your review; it may be enforceable, and could lead to an awkward moment for you later. Again, cover this orally and in your written materials that you prepare and provide to the client at the beginning of representation.
Look for new opinions from the ABA; there are a few each year. Be sure to compare the Model Rule with our own version of it. There may be significant differences. Other ABA formal ethics opinions released this year include:
• Formal Opinion 11-460: duty when a lawyer receives copies of a third-party’s email communication with counsel. (Generally, the employer’s lawyer has no duty to notify opposing counsel when the employer locates the employee’s private emails in a business email file or the employee’s workplace computer under Rule 4.4 (b).)
• Formal Opinion 11-459: duty to protect the confidentiality of email communications with one’s client. (Generally, a lawyer sending or receiving substantive communications with a client via email or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or email account, where there is a significant risk that a third party may gain access.)
• Formal Opinion 11-458: changing fee arrangements during representation. (Generally, fee agreements may be modified, if reasonable under the circumstances and accepted by the client.)
These opinions are available through the ABA website at www.americanbar.org, or a Google search. These synopses are provided for the convenience of the reader. Oklahoma laws, court rules, regulations, Oklahoma Rules of Professional Conduct and related opinions are controlling.
About The Author
Travis Pickens serves as OBA ethics counsel. He is responsible for addressing ethics questions from OBA members, monitoring Diversion Program participants, teaching classes, speaking at continuing education programs and other law-related seminars and writing articles for The Oklahoma Bar Journal and other publications. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.
Originally published in the Oklahoma Bar Journal -- Oct.8, 2011 -- Volume 83, No. 26.