Can a lawyer advise a client to ask a represented adverse party to do something, and can the lawyer hand that party a document to sign?

Plain-English summary

A lawyer's client wanted to sell real estate, but his sister, who was represented by counsel, held an attachment on the property. The lawyer asked whether Rule 4.2 barred her from advising her client to urge the sister to agree to release the attachment, and whether she could prepare a release and hand it to the sister directly when the sister's lawyer was not present.

The opinion identifies a tension between Comment 1 to Rule 4.2 (parties may communicate directly with each other) and Rule 8.4(a) (a lawyer may not violate the rules "through the acts of another"). It notes that the ABA Model Rules resolve the tension with added language permitting a lawyer to advise a client about a communication the client is legally entitled to make, and concludes the Supreme Judicial Court would likely read the Massachusetts rules the same way, at least where the lawyer has not so scripted the client's communication as to make it the lawyer's own. On that basis, the committee concludes that simply urging the client to talk with his sister, and giving general advice about the conversation, does not violate Rule 4.2 or Rule 8.4(a).

The opinion draws the line at the lawyer preparing a release and presenting it to the sister for signature without the knowledge and permission of the sister's lawyer. The committee concludes that handing over the release is itself a forbidden communication ("Here is something for you to sign"), even if the lawyer says nothing, and that doing so would defeat Rule 4.2's twin purposes of preserving counsel's mediating role and protecting represented parties from overreaching by opposing counsel.

In practice

Under the Massachusetts rule as it stood at the time of the opinion, the analysis turns on who is doing the communicating. The opinion holds that advising a client, in general terms, to approach a represented adverse party directly is permitted, because parties may communicate with each other and the lawyer is not making the communication her own.

The opinion holds that the lawyer crosses the line when she communicates with the represented party herself, including by handing that party a document to sign, without the consent of the party's lawyer; per the opinion, that act is a Rule 4.2 violation regardless of whether the lawyer speaks.

Common questions

Q: Can I tell my client to talk to the other side directly when they have a lawyer?

A: The opinion concludes that generally advising your client to approach a represented adverse party, and giving general advice about the conversation, does not violate Rule 4.2 or Rule 8.4(a), as long as you have not scripted the client's communication to make it your own.

Q: Can I hand a represented party a document to sign if their lawyer is not there?

A: No. The opinion concludes that presenting a release to the represented party for signature without the other lawyer's permission is itself a prohibited communication under Rule 4.2, even if you say nothing.

Q: Does it matter that the parties are siblings in the same dispute?

A: The opinion treats the sister as a represented adverse party in the matter; the relationship does not change the analysis. What matters is that she is represented by counsel on the subject of the communication.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 4.2 (communication with a person represented by counsel) and Rule 8.4(a) (violating the rules through the acts of another). It contrasts the Massachusetts comments with the ABA Model Rule language that expressly allows a lawyer to advise a client about a communication the client is legally entitled to make. These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / Mass. R. Prof. C. 4.2 (communication with represented persons; Comment 1 on direct party contact)
• MR 8.4(a) / Mass. R. Prof. C. 8.4(a) (violating the rules through the acts of another)

Cases:

• Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347 (2002), Rule 4.2's twin purposes

Other opinions cited:

• MBA Opinion 05-01: Rule 4.2's purposes

See also

• ABA Ethics Op. 502: communication with a represented person by a pro se lawyer
• ABA Ethics Op. 503: "reply all" in electronic communications with represented parties
• ABA Ethics Op. 472: communicating with a person who has limited-scope counsel

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2011-opinion-11-03/opinion-11-03