If a California lawyer is also serving as the bankruptcy trustee, may the lawyer-trustee speak directly with the debtor or creditors who are represented by counsel, without those parties' counsel's consent?

Currency note

This opinion was issued in 1989, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rule 2-100, the predecessor to current Rule 4.2. 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 Treat this page as historical context, not current guidance.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.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered the common situation of a member of the State Bar appointed as bankruptcy trustee, where the other parties to the proceeding were represented by counsel. Whether or not the trustee retained counsel personally, the trustee often needed to communicate directly with the debtor or particular creditors. The question was whether, absent the represented parties' counsel's consent, those communications were proper under former Rule 2-100.

The committee opined that the clear language of Rule 2-100(A) prohibited a lawyer "while representing a client" from communicating with a represented party. The Discussion following Rule 2-100 stated that the rule was not intended to prevent the parties themselves from communicating, and that the rule did not prohibit "a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party."

The committee concluded that although a trustee may be an attorney, the trustee's role is as the representative of the debtor's estate, with capacity to sue and be sued under 11 U.S.C. section 323. The committee opined that under the rule's plain language and the Discussion, the trustee, as a party, was permitted to communicate directly with other parties to the bankruptcy proceeding.

Common questions

Q: Does Rule 2-100 apply to a lawyer who is also a party?

A: Per the opinion (relying on the Discussion to former Rule 2-100), no. The committee opined that the rule did not prohibit a member who is a party to a legal matter from communicating on the member's own behalf with a represented party.

Q: Why was the bankruptcy trustee treated as a party rather than as counsel?

A: Per the opinion, the trustee is the representative of the debtor's estate with capacity to sue and be sued (citing 11 U.S.C. section 323). The committee opined that role makes the trustee a party to the proceeding, regardless of the trustee's separate status as a State Bar member.

Q: Did the result change if the trustee was also separately represented by counsel?

A: Per the opinion, no. The committee opined that whether the trustee was or was not represented by counsel, the trustee's role as a party permitted direct communication with the other represented parties.

Background and rules framework

The opinion interpreted former California Rule of Professional Conduct 2-100(A) and the Discussion following Rule 2-100, together with Rule 1-100(C) (committee discussions provide interpretive guidance). The Bankruptcy Code provision cited was 11 U.S.C. section 323 (trustee as representative of the estate). Former Rule 2-100 is the predecessor to current California Rule 4.2 and parallels ABA Model Rule 4.2.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 2-100(A) and its Discussion
• Former California Rule 1-100(C)

Statutes:

• 11 U.S.C. section 323 (bankruptcy trustee as representative of the estate)

See also

• CA Ethics Op. 1993-131: Rule 2-100 Indirect Communication Through the Client

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1989-110.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1989-110

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1989-110

ISSUE:

Is it proper for a bankruptcy trustee, who is a member of the State Bar of California, to communicate directly with parties to the bankruptcy proceeding who are represented by counsel?

DIGEST:

Such communication is not prohibited.

AUTHORITIES INTERPRETED:

Rule 2-100 of the Rules of Professional Conduct of the State Bar of California.

ISSUE

Many individuals appointed as trustees in bankruptcy proceedings are also members of the State Bar. Frequently, the other parties are represented by counsel, and, in some cases, the trustee will retain counsel. Whether the trustee is or is not represented by counsel, he or she often will wish to communicate directly with other parties, e.g., the debtor or particular creditors. We have been asked whether, in the absence of a party's attorney's consent, such communication is proper.

DISCUSSION

Rule 2-100(A) of the Rules of Professional Conduct provides that "[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter unless the member has the consent of the other lawyer."

The Discussion following rule 2-100 states:

Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made. Moreover, the rule does not prohibit a member who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. . . . (Emphasis supplied.)1

Although a trustee may be an attorney, his or her role as trustee is as the representative of the estate of the debtor - i.e., a party to the proceeding who has the capacity to sue and be sued.2 Hence, under the clear language of both the rule and Discussion, the Trustee, as a party, is permitted to communicate directly with other parties to the proceeding.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.

1 "[T]he comments contained in the Discussions of the rules . . . are intended to provide guidance for interpreting the rules and practicing in compliance with them." (Rule 1-100(C) of the Rules of Professional Conduct of the State Bar of California.)

2 11 U.S.C. §323.