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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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."

Copyright 2000, Thomas E. Spahn