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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?”

“Did we represent Acme in pre-suit negotiations?” Ethox asked. “Did some other lawyer?”

“No,” Paradox answered. “Acme was dealing with a long-time customer, WEC Limited. WEC complained a lot over the years but kept buying more Acme products. So Acme kept its lawyers away. Then, just when Acme Company thought negotiations were going well, Nemesis filed suit and called Marvin Acme to learn all Acme’s secrets.”

“If there was no lawyer representing Acme during those earlier negotiations, the ethics rules do not prohibit Nemesis’s call,” Ethox explained. “ABA Model Rule 4.2 prohibits a lawyer from discussing a matter with another lawyer’s client, but only if the lawyer knows the other person is represented. Otherwise, a lawyer like Nemesis may speak directly with that party—whether there is a pending lawsuit or not.”

“Nemesis interrogated Acme about almost every aspect of the lawsuit,” Paradox protested. “Aren’t there limits on what Nemesis can do?”

“It may seem surprising,” Ethox answered, “but there are relatively few limits on what Nemesis could ask. Rule 4.4(a) prevents Nemesis from learning privileged information from Marvin Acme. But you said that Acme Company had no lawyers involved, so this is probably not an issue.”

Setting down the coffee mug, Ethox continued, “Rule 4.1—as well as Rule 8.4(c)—barred Nemesis from making false statements. So Nemesis needed to be careful that Acme was not misled in any way.”

“I doubt Nemesis would be so sloppy!” Paradox interjected. “But Nemesis would get pretty close to the line, particularly if Acme had helpful information.”

“Even a misleading statement might be enough to get Nemesis into trouble,” Ethox responded. “In addition, since Nemesis was representing WEC, Rule 4.3 prevented Nemesis from acting disinterested. Do you think Acme realized why Nemesis was calling?”

“I certainly hope so,” Paradox responded. “Marvin Acme heads a very large, profitable company.”

“Well, Acme might have asked Nemesis if Acme Company needed its own lawyer,” Ethox offered. “Perhaps Nemesis tried to discourage Acme from involving a lawyer. Then, Nemesis may have violated Rule 4.3.”

“It sounds like I need to learn exactly what happened,” Paradox offered.

“Definitely,” Ethox affirmed. “Also, knowing Nemesis, there might be a tape of the conversation. Some states permit one person on a telephone conversation to record the conversation without the other party’s consent. Other states, like ours, require all parties’ consent for recording.”

“Oh, if there is a tape, I would love to get my hands on it,” Paradox stated.

“That’s why we have civil discovery,” Ethox responded.

“I guess I should call Acme back. Will you join me on the call?” Paradox asked.

“I would be happy to,” Ethox responded, abandoning the coffee mug and following Paradox down the hall.

Michael Downey

The author is with Armstrong Teasdale LLP, St. Louis. He also teaches legal ethics at Washington University School of Law.