May a California lawyer send a written communication addressed to a represented party but delivered through that party's attorney, and may the lawyer communicate ex parte with an adverse non-party witness?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.
Currency note
This opinion was issued in 1997, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 2-100 corresponds to current Rule 4.2 (communication with a represented person). 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 Treat this page as historical context, not current guidance.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.
Plain-English summary
The committee considered a defense attorney in a personal-injury case who sent a copy of a defense-retained physician's report (with defense interpretation of its contents) both to the plaintiff care of plaintiff's attorney and to plaintiff's treating physician, without plaintiff's attorney's consent.
On the first issue (writing the represented party care of opposing counsel), the committee identified its prior Formal Opinion 472, which approved sending a written communication directed to officers or board members of a represented organization through the organization's attorney. The committee identified that Rule 2-100 was not designed to prevent or hinder communications between opposing parties; when the communication is directed to the represented party but sent to that party's attorney, the communication is wholly within the receiving attorney's control. The receiving attorney can control the timing of delivery, comment on the communication, and suggest an appropriate response, subject to Rule 3-500 (duty to keep client informed) and Business and Professions Code section 6068(m). The committee concluded the scope of Rule 2-100 is not selective as to the type of client, organizational or individual, and the form of communication does not threaten the rule's values.
On the second issue (ex parte contact with the treating physician as a non-party witness), the committee identified that a witness is not a "party" within Rule 2-100. Citing Bobele v. Superior Court, the committee quoted: "Absent a privilege (such as attorney-client or attorney work product), counsel for all parties have a right to interview an adverse party's witness (the witness willing) in private, without the presence or consent of opposing counsel." The committee identified that instances of work-product or privileged information are not within Rule 2-100's scope (which concerns communications with the represented client). Citing Jorgensen v. Taco Bell Corp., the committee concluded that Rule 2-100 should be given a reasonable, common-sense interpretation and not stretched to cover unintended situations.
The committee identified, in a footnote, that attorneys should not intentionally use communications with adverse witnesses as a subterfuge to contact represented parties under circumstances where the attorney could not personally make the ex parte contact.
Common questions
Q: Can a California lawyer send a letter addressed to a represented party but sent to that party's attorney?
A: Per the opinion, yes. The committee identified that the receiving attorney controls the timing of delivery and can comment on the communication; the practice does not threaten Rule 2-100's values.
Q: Does Rule 2-100 apply to a non-party witness?
A: Per the opinion, no. The committee identified a witness as not a "party" within the rule.
Q: Can the attorney interview an adverse party's treating physician without opposing counsel's consent?
A: Per the opinion (citing Bobele), yes, absent attorney-client privilege or work product. The witness must be willing.
Q: What if the attorney uses contact with a witness as a subterfuge to reach the represented party?
A: The committee identified, in a footnote, that attorneys should not intentionally use witness contacts as a subterfuge to contact the represented party in circumstances where direct ex parte contact would be prohibited.
Background and rules framework
The opinion interprets former California Rule of Professional Conduct 2-100(A) (communication with represented party), with reference to Rule 3-500 (duty to inform client of significant developments) and Business and Professions Code section 6068(m) (same). The committee distinguished its analysis of represented parties from non-party witnesses and identified privileged communications as a separate constraint.
Citations and references
Rules of Professional Conduct (former):
- California Rule 2-100 (communication with represented party)
- California Rule 3-500 (duty to keep client informed)
Statutes:
- California Business and Professions Code section 6068(m)
Cases:
- Abeles v. State Bar, 9 Cal.3d 603 (Cal. 1973), purpose of ex parte prohibition is integrity of attorney-client relationship
- Bobele v. Superior Court, 199 Cal.App.3d 708 (1988), right to interview adverse party's witness without opposing counsel
- Jorgensen v. Taco Bell Corp., 50 Cal.App.4th 1398 (1996), Rule 2-100 given reasonable common-sense interpretation
Other opinions cited:
- LACBA Formal Opinion 472 (written communication to represented organization care of counsel)
See also
- LACBA Opinion 497: Consulting With Client During Deposition
- LACBA Opinion 487: Ex Parte Contact With Represented Individual About Counsel's Competence
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010620
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