Can a lawyer suing a homeowners' association contact ordinary members who cannot bind the association without the association's lawyer present?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer suing a homeowners' association wanted to talk with general members of the association who were neither board members nor officers and could not bind the association. The Committee concluded that ER 4.2, which bars contact with a represented "party," did not reach these members. Applying the Comment to ER 4.2, the opinion reasoned that in the organizational context a "party" means a person with managerial responsibility, a person whose act or omission could be imputed to the organization for liability, or a person whose statement could be an admission. The general members fit none of those categories, so they were not parties and could be contacted directly.
The Committee grounded the result in its own prior opinions, treating the homeowners' association no differently from a municipality (Opinion No. 203) or a police department (Opinion No. 84-15) it had previously addressed. The opinion also drew on a New York City Bar opinion describing disclosures a lawyer should make even to mere witnesses.
To stay within ER 4.1, 4.3, and 4.4, the opinion directed that the lawyer contacting such members should identify himself or herself as a lawyer representing a party adverse to the association, disclose that the information is sought for litigation, describe the dispute, advise that any disclosure is voluntary, and avoid any suggestion calculated to make the member suppress or alter the truth.
Currency note
This opinion was issued in 1996, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Which association members are off-limits without opposing counsel's consent?
A: Per the opinion, members who have managerial responsibility, whose acts or omissions could be imputed to the association for liability, or whose statements could be admissions are treated as the represented party under ER 4.2 and may not be contacted directly.
Q: What must the lawyer tell a member before the interview?
A: The opinion directed the lawyer to disclose that he or she is a lawyer representing a party against the association, that the information is sought for litigation, the nature of the dispute, and that any disclosure is voluntary, while avoiding any attempt to induce false or altered testimony.
Q: Does this apply to organizations other than homeowners' associations?
A: The Committee saw no reason to treat a homeowners' association differently from the municipality and police department it had addressed in earlier opinions, applying the same managerial/imputed-liability/admission test.
Background and rules framework
The opinion applied ER 4.2, which prohibited communicating about the matter with a party known to be represented by counsel, as construed by its Comment for organizations. It read that rule alongside ER 4.1 (truthfulness to third persons), ER 4.3 (dealing with an unrepresented person), and ER 4.4 (respect for the rights of third persons), which together set the disclosures required when interviewing unrepresented members. The Committee relied on Lang v. Superior Court, 170 Ariz. 602 (App. 1992), for the purposes behind the no-contact rule.
Citations and references
Rules of Professional Conduct:
- MR 4.2 (communication with a represented person)
- MR 4.3 (dealing with an unrepresented person)
- MR 4.4 (respect for rights of third persons)
- MR 4.1 (truthfulness in statements to others)
Cases:
- Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992), purposes of the no-contact rule
Other opinions cited:
- Arizona Ethics Op. No. 203 (1966) and No. 84-15 (1994): contacting non-managerial employees of an adverse organization
- Association of the Bar of the City of New York Op. 80-46 (1980): disclosures to unrepresented corporate witnesses
See also
- ABA Formal Op. 95-396: Communicating With Represented Persons
- ABA Formal Op. 06-443: Contacting an Organization's Inside Counsel
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
An attorney who is litigating against a homeowner's association may communicate with general members of the association who are not board members or officers of the association and are not in a position to bind the association, without the prior consent of counsel for the association. [ERs 4.2, 4.3, 4.4]
An attorney is litigating against a homeowners' association. The attorney wishes to discuss matters relevant to the litigation with general members of the association who are neither board members or officers of the association nor in a position to bind the association.
QUESTION PRESENTED
Whether an attorney representing a party in a dispute against a homeowners' association may communicate with general members of the association, who are not board members or officers of the association and not in a position to bind the association, without the presence or consent of the association's attorney.
RELEVANT ETHICAL RULES
ER 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
ER 4.2 Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
ER 4.3 Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
ER 4.4 Respect for Rights of Third Person
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
OPINION
Ethical Rule 4.2 of the Rules of Professional Conduct states that "a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer" without the consent of the other lawyer or legal authority to do so. The Comment to ER 4.2 addresses the application of this rule to "organizations," and provides an expanded definition of "a party" in cases involving organizations. In pertinent part, the Comment to ER 4.2 provides:
In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter maybe imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
The purpose of the prohibition on ex parte contacts with a party known to be represented by counsel is to "(1) prevent unprincipled attorneys from exploiting the disparity in legal skills between attorneys and lay people, (2) preserve the integrity of the attorney-client relationship, (3) help to prevent the inadvertent disclosure of privileged information, and (4) facilitate settlement." Lang v. Superior Court, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (App. 1992), citing Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990).
The facts presented by the inquiring attorney resolve the issue addressed in the quoted portion of the Comment to ER 4.2. Namely, the general members of the homeowners' association at issue specifically do not have any "managerial responsibility" on behalf of the association, their acts or omissions cannot be imputed to the association for the purposes of liability and their statements cannot constitute admissions of the association. The general members of the association, therefore, cannot be considered "parties" for the purposes of ER 4.2. Consequently, communicating with these general members about the litigation without the association's attorney being present is not ethically proscribed. Prior Arizona Ethics Committee Opinions support this conclusion.
In Opinion No. 203 (September 23, 1966), the Committee analyzed whether, where a suit had been filed against a municipality, the plaintiff's lawyer may properly contact directly various employees and administrators of the municipality to obtain information about the case without first obtaining the consent of the municipality's counsel. The Committee concluded that a plaintiff's attorney may contact directly and interview current employees of the defendant municipality for the purpose of obtaining information concerning a case, so long as the attorney: (a) advises the employees that he is an attorney and represents a client against the municipality; (b) avoids any suggestion calculated to induce the employees to suppress or alter the truth or affect their conduct on the witness stand; and (c) determines that the employees of the municipality do not hold positions wherein they have authority to speak for and bind the municipality.
Similarly, in Opinion No. 84-15 (October 31, 1994)[2], the Committee considered whether a law firm, during the course of its representation of individual police officers against an inquiry by their police department supervisors, may informally interview employees of the police department without first obtaining permission from counsel representing the department. The Committee determined that interviews with present employees were permissible if the attorney: (a) informs the employees that he is an attorney and represents a client against the police department; (b) avoids any suggestion calculated to induce the employees to suppress or alter the truth or affect their conduct on the witness stand; and (c) determines that the employees of the police department do not hold positions where they have the authority to speak for and bind the police department.[3]
Finally, in Opinion No. 87-25 (December 30, 1987), the Committee cited to Opinion No. 80-46 of the Association of the Bar of the City of New York (1980). In that opinion, that Association outlines certain disclosures that must be made even to mere witnesses (and not parties) who were unrepresented employees of a corporate defendant when attempting to obtain information about that defendant. The New York Association concluded that the interviewer should always disclose: (1) who the interviewer represents; (2) the fact that the information is sought in connection with litigation; (3) a description of the dispute; and (4) the fact that any disclosure is voluntary. The Committee again approves of these disclosures. By making these disclosures, it will also assist the attorney in ensuring compliance with ERs 4.1, 4.3 and 4.4.
CONCLUSION
An attorney representing a party in a dispute against a homeowners' association may communicate with general members of the association, who are not board members or officers of the association and not in a position to bind the association, without the prior consent or presence of the association's attorney. There is no legitimate reason for treating an organization such as a homeowners' association any differently than the other types of organizations upon which this Committee has already opined in this context (municipality in No. 203 and the police department in No. 84-15).
In order to ensure ethical compliance in connection with communicating with non-managerial, general members of a homeowners' association, the attorney should: (1) inform the members that he or she is an attorney representing a party against the homeowners' association; (2) disclose the fact that the information is sought in connection with litigation; (3) describe the nature of the dispute; (4) advise of the fact that any disclosure is voluntary; and (5) avoid any suggestion calculated to induce the member to suppress or alter the truth or affect their conduct when appearing on the witness stand. In addition, the attorney must also comply with all other mandates set forth in ERs 4.1, 4.3 and 4.4.
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