Can a California lawyer's consent under the no-contact rule (former Rule 2-100) be implied rather than express, and what factors determine whether it has been?

Plain-English summary

The opinion considers a hypothetical conversation outside of court between Attorney A, who is conferring with Client A, and opposing Attorney B. After exchanging pleasantries about the weather, Attorney A asks Attorney B whether calling Client A's elderly mother as a witness is really necessary. Client A speaks up, and Attorney B responds. Client A speaks again, and Attorney B again responds, this time directly to Client A. The question is whether Attorney B has violated former Rule 2-100 by responding to Client A in the presence of Attorney A.

The committee starts from the rule's text: "While 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." Rule 2-100 itself does not specify whether consent must be express or may be implied. The committee notes there is no California case on point.

The committee concludes that consent may be implied. The opinion draws on California authority recognizing implied consent in other contexts, including Penal Code section 261.6 and decisions on entry of property, vehicle right-of-way, criminal loitering, and hotel rooms. It also relies on California State Bar Formal Opinion 1993-131 and Los Angeles County Bar Formal Opinions 472 and 490, and on out-of-state authority including New York City Bar Formal Opinion 2009-1 and the Restatement (Third) of the Law Governing Lawyers section 99, comment j.

The committee identifies nine non-exhaustive factors that bear on whether consent has in fact been implied: (1) whether the communication is within the presence of the other attorney; (2) prior course of conduct; (3) the nature of the matter, with transactional matters more likely than litigation to support implied consent; (4) how the communication is initiated and by whom, including emails copying clients with a "Reply to All" risk; (5) the formality of the communication, with formal communications less likely to support implied consent; (6) the extent to which the communication might interfere with the attorney-client relationship; (7) whether a common-interest or joint-defense privilege exists between the parties; (8) whether the other attorney will have a reasonable opportunity to counsel the represented party contemporaneously or immediately afterward; and (9) the instructions of the represented party's attorney.

Applying these factors, the committee concludes Attorney A provided implied consent. Attorney A initiated the substantive conversation in Client A's presence, Attorney B's responses were in direct response to Attorney A's inquiry, and Attorney A did not intercede to stop the communication.

In practice

Under California's rules as they stood at the time of the opinion, conduct consistent with the opinion is conduct in which (i) the lawyer relying on implied consent can identify specific facts and circumstances supporting it from the nine-factor list and (ii) the lawyer recognizes that none of the factors is individually determinative. The committee notes in footnote 4 that, even where consent may be implied, "it is good practice to expressly confirm the existence of the other attorney's consent, and to do so in writing." Consent of the represented party alone is not sufficient under the rule; the rule requires the consent of the other lawyer. Verify against current Rule 4.2 before relying on this framework.

Common questions

Q: Does California's no-contact rule allow consent to be implied?

A: Per the opinion, yes. The committee, finding no California case on point, holds that consent under former Rule 2-100 may be implied by the facts and circumstances surrounding the communication.

Q: Is the represented party's consent enough?

A: Per the opinion, no. The committee states that "consent of the represented party is not sufficient. Rule 2-100 specifies that the consent of the other lawyer is required."

Q: Does copying opposing counsel on a communication to the represented party satisfy the rule?

A: Per the opinion, not necessarily. Copying the other lawyer is not necessarily sufficient because the rule requires consent. The committee cites ABA Informal Opinion 1348 and a New York court applying analogous DR 7-104.

Q: Can a "Reply to All" email to a group thread that includes opposing counsel's client be permissible?

A: Per the opinion, sometimes. The committee cites New York City Bar Formal Opinion 2009-1 for the proposition that in group email communications involving multiple lawyers and their respective clients, consent to "Reply to All" communications may sometimes be inferred from the facts and circumstances presented. Whether implied consent exists depends on the totality of facts.

Q: When is consent clearly not implied?

A: Per the opinion, consent should not be inferred where the represented party's attorney expressly withholds it or instructs the other attorney not to communicate with the client. The committee also flags that the more formal the communication, the less likely implied consent will be found (for example, a demand letter copied to the represented party would be difficult to justify).

Q: Does the rule apply only in litigation?

A: Per the opinion, no. The Discussion to former Rule 2-100 provides that "the subject of the representation," "matter," and "party" are not limited to a litigation context, and the committee notes that tacit consent may be more common in transactional matters.

Background and rules framework

Former Rule 2-100(A) provides that a member representing a client may 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 opinion relates this to the rule's underlying purpose, identified in Abeles v. State Bar (1973) 9 Cal.3d 603 and Bobele v. Superior Court (1988) 199 Cal.App.3d 708, of preserving the attorney-client relationship and protecting represented parties from approaches by opposing counsel. The opinion compares ABA Model Rule 4.2's parallel structure and surveys other jurisdictions' approaches. The current California analogue is Rule 4.2.

Citations and references

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

• Former California Rule 2-100 (Communication With a Represented Party)

ABA Model Rules (referenced for guidance):

• ABA Model Rule 4.2

Cases:

• Abeles v. State Bar (1973) 9 Cal.3d 603, purpose of the no-contact rule
• Bobele v. Superior Court (1988) 199 Cal.App.3d 708, scope of the no-contact rule
• Milton v. State Bar (1969) 71 Cal.2d 525, no-contact rule and counsel-presence error correction
• Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, commonsense interpretation of former Rule 2-100
• Wright v. Group Health Hospital (1984) 103 Wash.2d 192, presence of party's attorney neutralizes contact
• Health Maintenance Network v. Blue Cross of So. California (1988) 202 Cal.App.3d 1043, implied consent (former Rule 3-310 context)
• AIU Ins. Co. v. The Robert Plan Corp. (2007) 17 Misc.3d 1104(A), New York DR 7-104 application
• Niesig v. Team I (1990) 76 N.Y.2d 363, New York no-contact rule

Statutes:

• California Penal Code section 261.6

Other opinions cited:

• ABA Formal Opinion 92-362, settlement offers and the no-contact rule
• ABA Informal Opinion 1348, copying opposing party on settlement offer
• California State Bar Formal Opinion 1993-131, implied consent under no-contact rule
• Los Angeles County Bar Formal Opinions 472 and 490, attorney delivery of communications to client
• New York City Bar Formal Opinion 2009-1, no-contact rule and group emails
• New York City Bar Formal Opinion 2005-4
• Texas Attorney General Opinion JC-0572 (2002)

Secondary:

• Restatement (Third) of the Law Governing Lawyers section 99, comment j

See also

• CA COPRAC Op. 2009-178: Settlement With General Release and Civ. Code 1542 Waiver
• CA COPRAC Op. 2003-161: Confidentiality in Non-Office Consultations

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2011-181-[10-0002]---PAW.pdf

Original opinion text

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

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2011-181

ISSUES: May consent under the "no contact" rule of California Rule of Professional Conduct 2-100 be implied, or must it be provided expressly? If consent may be implied, how is implied consent determined?

DIGEST: Consent under the "no contact" rule of California Rule of Professional Conduct 2-100 may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party's attorney.

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

STATEMENT OF FACTS

Attorney A is conferring with her client (Client A) outside of court when approached by Attorney B. After exchanging pleasantries regarding the weather, the following conversation takes place among Attorney B, Attorney A and Client A:

Attorney A to Attorney B: "Do you really need to call my client's mother to testify in court tomorrow? It really seems unnecessary and abusive under the circumstances. I would ask that you reconsider."

Client A to Attorney B: "Yes, she's quite elderly and it could be traumatic for her."

Attorney B to Attorney A: "Look, I'm sorry, but unless you're willing to be reasonable and settle, I think she's essential to my case. She's a key witness to what happened."

Client A to Attorney B: "You should leave my mother alone! She wasn't even there that day and doesn't really know anything! Besides your client caused this whole mess!"

Attorney B to Client A: "Then we will see what your mother really knows tomorrow."

Has Attorney B violated rule 2-100 by responding in the manner described above?

DISCUSSION

Paragraph (A) of rule 2-100 of the California Rules of Professional Conduct, entitled "Communication with a Represented Party," provides as follows:

While 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 to rule 2-100 provides an explanation of the purpose of the rule: "Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule." This is consistent with case law in California: "This rule [referring to a predecessor to rule 2-100] is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice. It shields the opposing party not only from an attorney's approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided. The rule was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role." (Abeles v. State Bar (1973) 9 Cal.3d 603, 609.) See also Bobele v. Superior Court (1988) 199 Cal.App.3d 708, 712 ("[Predecessor rule to rule 2-100] operates to protect a represented party from being taken advantage of by adverse counsel.... [T]he ultimate purpose of rule 7-103 is to preserve the confidentiality of attorney-client communications.").

1. Consent of the Other Lawyer

Consent of the represented party is not sufficient. Rule 2-100 specifies that the consent of the other lawyer is required in order for a member to communicate with a represented party about the subject of the representation. (See also ABA Formal Opn. No. 92-362.)

A common misconception is that the rule prohibits communication outside the presence of the other lawyer. However, the presence of the other lawyer is not necessarily sufficient to satisfy the requirements of rule 2-100. The rule specifies that the consent of the other lawyer is required in order for a member to be permitted to communicate with a represented party about the subject of the representation. Similarly, copying the other lawyer on correspondence is not necessarily sufficient – the rule requires consent. (See, e.g., AIU Ins. Co. v. The Robert Plan Corp. (2007) 17 Misc.3d 1104(A) (citing Niesig v. Team I (1990) 76 N.Y.2d 363); ABA Informal Opn. No. 1348.)

2. Applicability of Implied Consent

Rule 2-100 itself does not specify whether the requisite consent must be expressly given by the other lawyer, or whether the requisite consent may be implied by the facts and circumstances surrounding the communication with the represented party, and we are aware of no California case addressing this issue. We conclude, for the reasons described below, that consent under rule 2-100 need not be express, but may be implied.

Implied consent is often recognized under the law in the State of California. See, e.g., Cal. Penal Code, § 261.6; People v. Jo Wilkinson (1967) 248 Cal.App.2d Supp. 906, 908; People v. Wm. D. Noland (1948) 83 Cal.App.2d Supp. 819, 821; Thompson v. City of Louisville (1960) 362 U.S. 199, 205; People v. Linda Fay York (1970) 3 Cal.App.3d 648, 654.

We also note the existence of certain interpretive opinions in California which suggest consent under rule 2-100 may be implied. See Cal. State Bar Formal Opn. No. 1993-131 (citing Milton v. State Bar (1969) 71 Cal.2d 525, 534) (rule 2-100 anticipates that counsel who is present can correct errors in opposing counsel's communications, thus implying that conversations where clients are present can occur); see also Los Angeles County Bar Assn. Formal Opn. Nos. 472 & 490; Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1401.

Authorities in other jurisdictions outside of the State of California recognize implied consent under ethical rules comparable to rule 2-100. (See, e.g., Assn. of the Bar of the City of N.Y. Com. on Prof. and Jud. Ethics, Formal Opn. No. 2009-1; Rest. (Third) of Law Governing Lawyers § 99, cmt. j.)

3. Relevant Factors

For the reasons stated above, we conclude that consent under rule 2-100 need not be express, but may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include those set below. None of the factors below individually are necessarily determinative of whether consent has in fact been implied. Rather, an examination of all facts and circumstances surrounding the communication with the represented party is necessary to determine whether consent may be inferred.

• Whether the communication is within the presence of the other attorney. Presence gives the other attorney the opportunity to correct errors in such communication and otherwise protect the attorney-client relationship.
• Prior course of conduct. Prior conduct between the attorneys, whether in connection with the pending matter or other matters, may be indicative of implied consent.
• The nature of the matters. Tacit consent to communications with a represented party may be found more often in transactional matters as compared with adversarial matters.
• How the communication is initiated and by whom. Consent may be implied by the fact that the attorney invited the communication with his or her client or otherwise facilitated such communication.
• The formality of the communication. The more formal the communication, the less likely it is that consent may be implied.
• The extent to which the communication might interfere with the attorney-client relationship. Among factors weighing against implied consent are the likelihood that the represented party may make an admission or reveal confidential or privileged information, be persuaded by the communication, or question the advice or ability of his or her attorney.
• Whether there exists a common interest or joint defense privilege between the parties.
• Whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication.
• The instructions of the represented party's attorney. Certainly consent should not be inferred where the attorney expressly withholds such consent and/or instructs the other attorney not to communicate with his or her client.

APPLICATION TO THE FACTS

Applying these principles to our factual scenario, we conclude that Attorney A provided implied consent, and therefore the communications described therein do not violate rule 2-100.

We conclude that consent may be implied by the fact that Attorney A initiated the substantive conversation regarding the litigation between Client A and Client B, by asking Attorney B (in the presence of Client A) about the need to call a witness in the case. By doing so, Attorney A invited the communication. In further support of our conclusion, we note that Attorney B's communication is in direct response to Attorney A's inquiry and that Attorney A did not intercede and stop the communication.

CONCLUSION

We conclude that consent under rule 2-100 may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party's attorney.

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 responsibilities, or any member of the State Bar.