These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 77 - Communicating with an Individual Adversary
LEO NumTopicsSummaryDate
0848

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

77-Communicating with an Individual Adversary

A Commonwealth's Attorney may not arrange for a criminal suspect to tape record telephone conversations with an uncharged suspect. A Commonwealth's Attorney may not communicate with an uncharged suspect through another suspect, without the uncharged suspect's lawyer's consent. [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.]10/9/1986
0482

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9-Government Lawyer Conflicts

77-Communicating with an Individual Adversary

A government lawyer must comply with the rules for communicating with an adversary. If the lawyer does not know if an adversary is represented by counsel, the lawyer must ask whether the adversary wants a lawyer present, and continue the discussion only if the adversary does not. 11/23/1982
1389

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73-Family Law Lawyers

77-Communicating with an Individual Adversary

A lawyer for one parent in a child custody matter may not directly communicate with the other parent absent that parent's lawyer's consent, because entry of a final decree in the child custody case does not normally end the matter. In a situation like this, a lawyer who is unsure if the other party is still unrepresented may write the other party for the sole purpose of determining if the party is represented by a lawyer (this rule would apply in litigation and non-litigation contexts). 11/30/1990
1281

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77-Communicating with an Individual Adversary

A lawyer may communicate with an adverse witness as long as the lawyer discloses the lawyer's adversarial role. 10/19/1989
0931

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77-Communicating with an Individual Adversary

85-Business Cards

A lawyer may include on a business card an indication that the lawyer's clients request that the lawyer be contacted before the clients are asked any questions. 6/11/1987
1431

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60-Lawyers Acting as Trustees

77-Communicating with an Individual Adversary

A lawyer may not communicate directly with an adversary, even if the adversary is a lawyer acting as a bankruptcy trustee. 9/16/1991
1326

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77-Communicating with an Individual Adversary

A lawyer may not directly contact an adverse party who is represented by a lawyer without that lawyer's consent (the adverse party's consent is insufficient). 2/27/1990
0233

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77-Communicating with an Individual Adversary

A lawyer may not instruct a client to communicate with an adverse party without obtaining the consent of the adverse party's lawyer. 1/3/1974
0963

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44-Conflicts - Miscellaneous

77-Communicating with an Individual Adversary

A lawyer may not send an adversary a letter during the time an appeal may be filed if the adversary was represented during the trial, even though no appeal has been filed and the adversary's lawyer has not indicated that an appeal will be filed. 9/4/1987
0501

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77-Communicating with an Individual Adversary

A lawyer may not send the adversary's client a copy of a letter the lawyer sent to the clerk alleging that the adversary lied to the court. 2/1/1983
1547

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3-Multiple Representations on the Same Matter

18-Consent and Prospective Waivers

25-Dealing with Unrepresented People

76-Trust and Estate Lawyers

77-Communicating with an Individual Adversary

A lawyer representing the administrator of a decedent's estate (who is also a potential wrongful death beneficiary) may not also represent other purported relatives, because the administrator and the other purported relatives take differing positions on the decedent's paternity. The conflict cannot be cured by disclosure and consent. The lawyer representing the defendant may contact the purported relatives ex parte because they are not currently represented by counsel. The defendant's lawyer may not give any advice "other than the advice to secure counsel," and "may not state or imply that he is disinterested in the matter." 8/12/1993
0986

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

36-Withdrawal from Representations

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.]10/27/1987
ABA-362

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77-Communicating with an Individual Adversary

A lawyer who does not believe that an adversary has communicated a settlement offer to the opposing party may not directly contact the other party, but may advise the lawyer's own client that: (1) the lawyer doubts the settlement has been communicated; and (2) the client is free to contact the other party directly. Unlike the Code, Model Rule 4.2 does not prohibit a lawyer from "causing another to communicate" with an opposing party. 7/6/1992
0771

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77-Communicating with an Individual Adversary

A lawyer who is a litigant (but not proceeding pro se) may directly contact the adversary. 3/11/1986
1525

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77-Communicating with an Individual Adversary

A lawyer who represents a tenant in a landlord-tenant dispute and is unsuccessful in having opposing counsel return telephone calls may nevertheless not leave a message on the landlord's voicemail. 5/11/1993
1709

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4-Witness-Advocate Rule

44-Conflicts - Miscellaneous

77-Communicating with an Individual Adversary

A lawyer who testifies in a venue hearing may not continue to represent the client through the rest of the litigation even if the venue issue will not "come up again during the trial on the merits." If the lawyer had to testify, it could not have been an uncontested matter. The "substantial hardship" exception did not apply because the lawyer did not allege "a distinctive value to the client as a result of any long-standing relationship with the client and familiarity with the client's affairs such that changing lawyers would pose a 'substantial hardship' to the plaintiff." Even though the venue question would not arise before the jury, the witness advocate rule applies with equal force to issues addressed to the judge. The witness-advocate rule "is a broad prophylactic rule designed to prevent even the appearance of impropriety," and therefore a lawyer who "testifies as a witness as to some contested pretrial issue" may not later appear as an advocate on the client's behalf. The lawyer may not arrange for another lawyer to file the lawsuit and handle the pretrial hearing examination (and then replace that lawyer as advocate), because it would circumvent the witness-advocate rule "through the actions of another."A lawyer may not contact an adversary ex parte after the adversary has non-suited a case, because "the entry of a non-suit does not terminate the representation of a party." The presumption of representation continues after the non-suit, just as the presumption continues during the period when an appeal might be filed after a final judgment. 2/24/1998
1755

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35-Threatening Criminal and Disciplinary Action

77-Communicating with an Individual Adversary

A lawyer’s letter warning an adversary’s lawyer against ex parte contacts with the lawyer’s client and threatening to “take the matter up with Judge and the Commonwealth’s Attorney” if the ex parte calls continue: (1) violated the first prong of the prohibition on threatening criminal charges “solely to obtain an advantage in a civil matter,” because reference to the Commonwealth’s Attorney “presents a definite threat of criminal prosecution”; (2) did not violate the second prong (that the threat be made “solely to obtain an advantage in a civil matter”), because “the letter does not make the usual demand for payment/settlement by threatening prosecution,” but instead was “meant to stop a certain action” (the ex parte contacts) that was itself improper. The Committee’s conclusion was based on the lawyer’s apparent belief that the adversary’s lawyer (rather than the adversary itself) was initiating the ex parte contacts. “While a party is free on his own initiative to contact the opposing party, a lawyer may not avoid the dictate of Rule 4.2 by directing his client to make contact with the opposing party.” 5/7/2001
1870

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23-Communicating with an Adversary - Miscellaneous

67-Lawyers Acting as Guardians Ad Litem"

77-Communicating with an Individual Adversary

A minor child's guardian ad litem acts as a lawyer when assisting the child, and therefore must consent to ex parte communications with the child by a lawyer representing a parent or guardian. Lawyers serving as guardians ad litem are "subject to the applicable Rules of Professional Conduct governing lawyers unless those ethical obligations are inconsistent with the lawyer's obligations or duties" as a guardian ad litem, so guardians ad litem likewise may not communicate ex parte with represented parent or guardians without their lawyers' consent. Many courts' form orders appointing lawyers as guardian ad litem indicate that they shall have access to parties to any proceeding, but such orders do not allow such lawyers' reliance on the "authorized by law" exception to the general prohibition on ex parte communications. Courts may specifically authorize guardians ad litem to communicate ex parte with parents or guardians. Prosecutors or local government lawyers representing governmental entities may not communicate ex parte with a child represented by a guardian ad litem, and may not "use a social worker, police officer, or other investigator as an intermediary in civil matters" to circumvent Rule 4.2. In such a civil setting, government lawyers do not violate Rule 4.2 "merely by requesting a social worker or investigator to communicate with a represented person" entitled by law to engage in such communications, and may "advise generally what information the lawyer seeks." However, such government lawyers "may not 'mastermind' or 'script' the interview or dictate the content of the communication," because such conduct would violate Rule 8.4(a) by "circumventing Rule 4.2 through the actions of another." The "law enforcement" exception to the ex parte prohibition applies to "investigative contacts related to possible criminal law violations, which means that government lawyers in that criminal setting may "instruct or direct" investigators or agents to communicate ex parte with children represented by guardians ad litem, and "may also give advice regarding the content of the communication with a represented person."10/4/2013
0550

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77-Communicating with an Individual Adversary

A personal injury plaintiff's lawyer may deal directly with the adversary's insurance company and the lawyer's investigator may directly contact the adversary and witnesses unless the lawyer knows that the adversary is represented by counsel. 6/21/1983
1323

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21-Reporting Another Lawyer's Unethical Conduct

77-Communicating with an Individual Adversary

A prosecutor may not send the defendant a copy of a letter that the prosecutor sends to the defendant's lawyer, without the lawyer's consent, even if the prosecutor believes that the lawyer has not communicated a plea agreement offer to the defendant. Instead, the prosecutor should consider advising the disciplinary authorities that the lawyer may not be fulfilling the ethical obligation to pass along all pertinent information to the lawyer's client. 2/27/1990
1507

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4-Witness-Advocate Rule

24-Representation of or Adversity to Witnesses

25-Dealing with Unrepresented People

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A public defender was appointed to represent a criminal defendant, but the public defender's office was currently representing or formerly represented a number of witnesses. The Bar held that "continued representation of a new client is improper when it becomes necessary to challenge the credibility of a former client, even in an unrelated matter, if it requires the use of the former client's confidential information in order to zealously represent the current client." Because the public defender was apparently representing one of the current adverse witnesses, the continued representation of the defendant required the consent of the defendant and the witness. The Commonwealth's Attorney had discussed the case with the witnesses. The Bar held that the Commonwealth's Attorney may not approach a present client of defense counsel without notifying defense counsel, and may not provide any legal advice (such as recommending signing a waiver) to any unrepresented former client.The public defender may continue to represent the defendant even if it became necessary to call one of the same office's former lawyers as a witness because DR 5-102(A) applies only when the lawyer-witness is presently associated with the firm.3/1/1993
ABA-461

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23-Communicating with an Adversary - Miscellaneous

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

Although Rule 8.4(a) prohibits lawyers from violating the ethics rules through another, clients may communicate ex parte with represented persons and Rule 4.2 cmt. [4] allows lawyers to advise their clients concerning such communications. Although some states prohibit lawyers from suggesting that their clients communicate ex parte with represented adversaries, or forbid lawyers from drafting talking points or pertinent documents relating to such communications, such a strict approach tends to harm unsophisticated clients who might not recognize the benefit of such communications or who might require a lawyer's assistance. Thus, "the lawyer may take the initiative and advise the client that it may be desirable at a particular time for the client to communicate directly with the other party." In addition, "a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used. Such advice may be given regardless of who the lawyer or the client conceives of the idea of having the communication. . . . the lawyer may review, redraft and approve a letter or a set of talking points that the client has drafted and wishes to use in her communications with her represented adversary. . . . The client also could request that the lawyer draft the basic terms of a proposed settlement that she wishes to have with her adverse spouse, or to draft a formal agreement ready for execution." Despite this freedom to assist clients in such ex parte communications, lawyers must avoid overreaching. "Prime examples of overreaching 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. To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information. If 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."8/4/2011
1415

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24-Representation of or Adversity to Witnesses

51-Government Attorneys

77-Communicating with an Individual Adversary

Because a Commonwealth's Attorney does not represent a victim/ witness, the lawyer may rely on the testimony of the victim/ witness in one prosecution and prosecute the victim/witness in a related prosecution (although the Commonwealth's Attorney may communicate directly with the victim/witness only with counsel's consent if the victim/witness is represented). 6/13/1991
1861

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77-Communicating with an Individual Adversary

Because a lawyer/trustee in a Chapter 7 bankruptcy proceeding acts as a fiduciary, he or she may not communicate ex parte with a represented debtor without the debtor's lawyer's consent unless such communications are "authorized" or mandated by law. Examples of such authorized communicates include "notices that, by statute or court rule, must be sent to the debtor personally, or a scheduled and noticed proceeding such as a meeting of creditors pursuant to 11 U.S.C. §341." Another statute (18 U.S.C. §1302(b)(4)) authorize a "wide variety of communications" between Chapter 13 trustees and debtors.2/21/2012
1375

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77-Communicating with an Individual Adversary

Contractually-required notices between a landlord and a tenant are permissible even if the parties are represented by lawyers, although courtesy would demand that a copy of the notice be sent to the recipient's lawyer. 10/1/1990
1752

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54-Insurance Defense Lawyers

77-Communicating with an Individual Adversary

Even if a lawyer representing the company owner and a driver in a personal injury case (with limited insurance coverage) refuses to acknowledge that the lawyer has advised the clients of their right to separate counsel, the plaintiff’s lawyer may not give such advice to the defendants -- either by mail or in a defendant’s deposition in the presence of the defendant’s lawyer (absent advance consent of the defendants’ lawyer). 3/29/2001
0521

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77-Communicating with an Individual Adversary

Even lawyers representing themselves may not contact an opponent who is represented by another lawyer. 8/1/1983
ABA-445

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23-Communicating with an Adversary - Miscellaneous

77-Communicating with an Individual Adversary

In the class action context, "a client-lawyer relationship with a potential member of the class does not begin until the class has been certified and the time for opting out by a potential member of the class has expired." Thus, Model Rules 4.2 and 7.3 "do not generally prohibit counsel for either plaintiff or defendant from communicating with persons who may in the future become members of the class." Both lawyers must comply with Model Rule 4.3 if they communicate with potential class members. Plaintiffs' lawyer must comply with Model Rule 7.3 if they are soliciting membership in the class, but those restrictions "do not apply to contacting potential class members as witnesses." "Both plaintiffs' counsel and defense counsel have legitimate need to reach out to potential class members regarding the facts that are the subject of the potential class action, including information that may be relevant to whether or not a class should be certified." "Restricting defense communication with potential plaintiffs could inhibit the defendant from taking remedial measures to alleviate a harmful or dangerous condition that has led to the lawsuit. A defendant in a class action lawsuit also would be prevented from attempting to reach conciliation agreements with members of the potential class without going through a lawyer whom the potential class member may have no interest in retaining." Of course, "the court may assume control over communications by counsel with class members."4/11/2007
ABA-472

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23-Communicating with an Adversary - Miscellaneous

25-Dealing with Unrepresented People

77-Communicating with an Individual Adversary

Lawyers providing limited-scope representations should describe those limits in writing. Opposing counsel may communicate ex parte with such clients on matters outside the limited representation's scope. Such opposing counsel have no duty to ask third parties whether they are represented, but may not avoid the ex parte communication prohibition by "closing eyes to the obvious." Thus, opposing counsel dealing with a possibly unrepresented person who has filed a pleading likely to have been prepared by a lawyer should ask the person whether she is represented by a lawyer. Opposing counsel may not communicate with such a person unless the person indicates "that the representation has concluded" or unless the issue "to be discussed is clearly outside the scope of the limited-scope representation.11/30/2015
1768

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

Nothing in the general provisions governing lawyer communications or the specific provisions governing prosecutors’ statements prohibits a prosecutor from stating in open court before a criminal defendant and the defendant’s lawyer that the defendant will face a jury trial under certain circumstances (in that jurisdiction, it is "commonly known" that juries impose longer sentences than judges).11/26/2002
1741

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24-Representation of or Adversity to Witnesses

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

77-Communicating with an Individual Adversary

Prosecutors may inform witnesses that they may be contacted by private investigators hired by the defense and explain "that they have the right to speak or not to speak with an investigator working for the defense" (although the prosecutor should not make any additional comments or criticize the investigators' tactics). 4/13/2000
1511

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9-Government Lawyer Conflicts

77-Communicating with an Individual Adversary

The Attorney General's Office may communicate with an adversary about the assessment of costs (after the rest of the case has concluded) as long as the adversary's lawyer consents. [The LEO describes the adversary as the lawyer's "former client," but the request for Opinion does not indicate that the attorney-client relationship has ended.] 4/12/1993
ABA-396

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48-Criminal Defense Lawyers

77-Communicating with an Individual Adversary

78-Communicating with an Employee of a Corporate Adversary

The rule prohibiting a lawyer from knowingly communicating with a represented adverse party: applies in the civil and criminal context; cannot be waived by the client; prohibits the lawyer from ignoring evidence that the other party is represented (the lawyer may want to contact a person's previous lawyer to confirm that the representation has ended); does not prohibit communications unrelated to the subject of the representation (a lawyer cannot prohibit all ex parte communications between the client and other lawyers by claiming that the lawyer represents the client "for all purposes"); prohibits communications with corporate employees "with managerial responsibilities," who "may legally bind the organization with respect to the matter in question," or "whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization"; prohibits such communication even if the represented person initiates the communication; does not prohibit contact with former officers or employees; allows communication with a person who claims no longer to be represented only if the lawyer has "reasonable assurance" that the representation has ended; prohibits the lawyer from directing an agent to communicate in violation of the rule; permits communications "authorized by law" (meaning that the communications were approved by a statutory authority).7/28/1995
1820

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57-In-House Lawyers

77-Communicating with an Individual Adversary

The rule prohibiting certain ex parte contacts applies to a railroad's in-house lawyer, the head of the railroad's claims department (who has a law degree but does not practice in the law department) and the railroad's claims agents working under the claims department head (who could not permissibly direct his staff to contact injured workers ex parte if the lawyer himself could not do so). "This attorney cannot establish and implement a procedure for his staff to routinely contact represented workers when the initiation of that contact as well as the content of the communications are incompatible with the attorney's responsibilities under Rule 4.2. Because claims agents who have law degrees are providing legal services to their employer, those claims agents are also governed by Rule 4.2. The railroad cannot justify such ex parte contacts by arguing that it is confirming written communications from the injured workers that they have lawyers, because the written notice is sufficient. Even if it were not, any ex parte communication must stop when the worker indicates that he has a lawyer. Any lawyers in the railroad's law department "cannot circumvent the requirements of Rule 4.2 by directing members of the claims department to initiate communications the attorney himself is precluded from conducting." Determining whether the non-lawyers ex parte contacts with injured workers "occurred with sufficient involvement of the in-house counsel" to trigger Rule 4.2 requires factual inquiry. Although clients may always contact the other clients directly, an in-house lawyer “is not a party to the dispute but instead is counsel for a party."1/27/2006

Copyright 2000, Thomas E. Spahn