Can a lawyer send a statutorily required document, like a medical-records release request, directly to an adverse party the lawyer knows is represented by counsel?

Plain-English summary

A workers' compensation statute, Title 39 M.R.S.A. section 52-A, required an employee who claims compensation to execute a certificate releasing medical records upon the employer's request, and (as amended) imposed sanctions if the employee failed to execute the certificate within 20 days after receiving a request made by certified mail, return receipt requested. An employer's attorney asked whether sending that request directly to a represented employee would violate Bar Rule 3.6(j), which barred a lawyer from communicating with a party known to be represented by counsel on the subject of the representation, absent the other lawyer's consent or authorization by law.

The opinion concluded that the statute's express command that the request be served on the employee by certified mail was a clear directive that the employee, not the employee's lawyer, personally receive the communication, which made the communication "authorized by law" and therefore outside the prohibition. The Commission added, however, that the authorized-by-law exception did not eliminate the rule's underlying requirement that communication about the subject of the representation involve opposing counsel. It concluded that, to comply with the rule, the employer's counsel must mail a copy of the certificate request to the employee's lawyer, if the employee is known to be represented, at the same time it is sent to the employee. The Commission observed that this application was particularly compelling given the severe potential consequences to the claim if the employee did not comply, and the fact that the prescribed form (WCC-220 Rev. 5/88) contained no admonition to the employee to consult counsel about whether to comply.

Currency note

This opinion was issued in 1989, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: Does a statute that requires serving a document on a represented party override the no-contact rule?

A: The opinion concluded that where the statute expressly commands the request be served personally on the party by certified mail, that direct communication is "authorized by law" and does not violate Rule 3.6(j).

Q: If the statute authorizes direct service, can the lawyer skip the represented party's counsel entirely?

A: No. The opinion concluded that the authorized-by-law exception did not displace the rule's underlying purpose, so counsel must mail a copy of the request to the represented party's lawyer at the same time the request goes to the party.

Q: Why did the Commission stress copying opposing counsel here?

A: The opinion noted the severe potential consequences to the employee's claim for non-compliance, and that the prescribed form gave the employee no admonition to consult an attorney about whether to comply.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.6(j), which prohibited a lawyer, during representation of a client, from communicating on the subject of the representation with a party known to be represented by counsel unless the other lawyer consented or the communication was "authorized by law." That rule corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel), which carries the same "authorized by law" exception. The statute at issue was Title 39 M.R.S.A. section 52-A (release of medical records in workers' compensation claims), as amended by P.L. 1987, c. 559, sec. 21.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented person)
• Maine Bar Rule 3.6(j)

Statutes:

• Title 39 M.R.S.A. section 52-A (release of medical records; as amended by P.L. 1987, c. 559, sec. 21)

See also

• ABA Formal Op. 97-408: Communication With a Government Agency Represented by Counsel
• ABA Formal Op. 92-362: Contact With Opposing Party on a Settlement Offer
• Maine Ethics Op. 94: Communication With a Municipality's Employees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91482

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: February 15, 1989

Question

The question presented is whether an employer's attorney would violate Rule 3.6(j) of the Maine Code of Professional Responsibility if the attorney made a request directly to an employee for the release of medical records, in accordance with the provisions of Title 39 M.R.S.A. Sec. 52-A, knowing that the employee is represented in the matter by an attorney.

Opinion

Section 52-A provides that an employee who makes a claim for compensation "shall upon request by the employer, execute a certificate . . . " for the release of medical records. As amended by P.L. 1987, c. 559, sec. 21, the statute further imposes sanctions upon an employee "if he fails to execute such a certificate within 20 days after receiving a request made by certified mail, return receipt requested. . . ." To invoke the sanctions in the event of non-compliance, the request must contain a notice to the employee that if he fails to execute the certificate within 20 days after receiving the request the statutory sanctions will apply.

The concern raised by the present inquiry stems from the directive of Rule 3.6(j), which prohibits a lawyer during the course of his representation of a client from communicating or causing another to communicate "on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." The rule thus effectively mandates that all communication with an opposing party must occur exclusively through counsel, absent the applicability of one of the stated exceptions.

Section 52-A, as amended, expressly commands that the request for execution of the certificate be made by certified mail, return receipt requested, upon the employee. This language constitutes a clear directive that the employee, and not the employee's lawyer, personally receive the communication. The requirement that the communication be personally received makes it "authorized by law."

A word of caution remains in order, however, in that the mere fact that direct communication is authorized by statute in no way detracts from the fundamental application of Rule 3.6(j) insofar as the rule continues to require that any communication concerning the subject matter of the representation involve opposing counsel. To comply with the rule, counsel for the employer in these circumstances must mail a copy of the certificate request to the employee's lawyer, if the employee is known to be represented, at the same time that it is sent to the employee. The logic of this application of the rule is particularly compelling given the severe potential consequences to the employee's claim in the event of non-compliance, and the fact that the current prescribed form for the certificate request (WCC-220 Rev. 5/88) contains no admonition to the employee to consult his attorney concerning whether or not to comply.