January 01, 2013

Scruples: Communicating with an Unrepresented Adversary

A brief examination of what a lawyer can and can’t do in this situation.

Michael Downey

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Paradox cornered Ethox at the coffee machine. “Nemesis is back,” Paradox started. “You won’t believe his tricks this time.”

Ethox objected, “The Jay-Kaye partnership dispute settled, didn’t it?”

“Yes, we settled the Friday before trial and signed the settlement agreement last week. I thought I was done with Nemesis for a while.” After a brief pause, Paradox pressed on. “We haven’t even wired the settlement payment to Kaye. And Senior Partner just received a call on a new suit—and Nemesis is the opposing counsel.”

“What type of case is it?” Ethox queried.

“It is a product liability lawsuit,” Paradox responded. “Our client is Acme Company, a rocket sled manufacturer. I don’t know much yet. But I just spoke to Acme’s CEO, Marvin Acme. Apparently, after the suit was filed, Nemesis called Acme. Nemesis spent an hour asking Acme all sorts of questions about the case. That’s not permitted, is it?”

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