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: 23 - Communicating with an Adversary - Miscellaneous
LEO NumTopicsSummaryDate
1553

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23-Communicating with an Adversary - Miscellaneous

73-Family Law Lawyers

[WITHDRAWN in 2009] Lawyers representing parents in a custody dispute may communicate ex parte with minor children, without the guardian ad litem's consent, but must follow the guidelines for communictions with an unrepresented person.10/20/1993
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
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
ABA-466

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Although the line between "properly investigating jurors and improperly communicating with them" is "increasingly blurred," lawyers may (and in some states must) engage in a "passive review" of jurors' electronic social media (which is similar to "driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury-selection decisions"). An electronically sent electronic source media ("ESM") feature notifying a juror that a lawyer has conducted such a search is not a prohibited "communication" to the juror (instead it "is akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror that the lawyer had been seen driving down the street"). In contrast, lawyers may not send an "access request" to a juror, because that would be a prohibited communication ("akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past"). Trial judges can "dispel any juror misperception that a lawyer is acting improperly" when conducting such a search by discussing with jurors "the likely practice of trial lawyers reviewing jurors' ESM." Lawyers learning through a search of jurors' ESM that a juror has engaged in "criminal or fraudulent conduct related to the proceeding" must take remedial action, including reporting the misconduct to the court. The Ethics 2000 Commission apparently intended to expand the disclosure duty to such a person's "improper conduct," but Model Rule 3.3(b) is still limited to "criminal or fraudulent" conduct. Lawyers' disclosure duty upon learning of a juror's misconduct such as improper communications during jury service "will depend on the lawyer's assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes."4/24/2014
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
1876

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

Prosecutors aware that non-citizen defendants without court-appointed counsel in a court which does not conduct plea colloquies may not offer a plea deal in exchange for a guilty plea without advising the defendant to obtain legal advice or request that the court conduct a colloquy.3/19/2015
ABA-350

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23-Communicating with an Adversary - Miscellaneous

This Opinion withdrew earlier Opinions about communications with adversaries. 5/7/1984
1863

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23-Communicating with an Adversary - Miscellaneous

54-Insurance Defense Lawyers

78-Communicating with an Employee of a Corporate Adversary

Virginia case law and ethics opinions "suggest" that a lawyer hired by an insurance company to represent its insured represents only the insured. On the other hand, absent a conflict of interest, the same lawyer may represent both the insurance company and the insured. Given this situation, a plaintiff's lawyer may communicate ex parte with the insurance adjuster or other insurance company executive without the insured's defense lawyer's consent -- "unless the plaintiff's lawyer is aware that the defendant/insured's lawyer also represents the insurer [overruling LEOs 550, 687, 1169 and 1524 to the extent that it implies otherwise]." [overruled in LEO 1863 (9/26/12), which indicated that plaintiff's lawyer may speak ex parte with an insurance adjuster or other insurance company executive unless the plaintiff's lawyer is aware that the insured's lawyer also represents the insurance company]9/26/2012

Copyright 2000, Thomas E. Spahn