A client fired me, hired new counsel, and asked me not to contact them, but I want to talk to them about the discharge and the file transfer. Does Rule 4.2 stop me?

Plain-English summary

The inquiring attorney had represented a client on several matters since 1997, including a personal injury case. The client retained a new lawyer, and the inquiring attorney received a letter from successor counsel asking that the client's file be forwarded and stating the client did not wish to be contacted by the inquiring attorney about the matter. Enclosed was a signed file-transfer authorization discharging the inquiring attorney and stating that successor counsel is "my attorney for all purposes." The inquiring attorney wanted to speak with the client about the discharge and file transfer.

The panel noted a client has the right to discharge a lawyer at any time, with or without cause, and that a discharged attorney must withdraw and take only the steps necessary to avoid prejudicing the client's rights. Because the client's own authorization stated that successor counsel was "my attorney for all purposes," the panel treated the client as represented within the meaning of Rule 4.2, which bars communicating about the subject of the representation with a party known to be represented by another lawyer absent that lawyer's consent.

The panel concluded that Rule 4.2 prohibits the inquiring attorney from communicating with the client about the file transfer or the discharge itself without first obtaining successor counsel's consent, citing an Illinois State Bar Association opinion reaching a comparable result.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, once a client signs an authorization naming successor counsel as attorney "for all purposes," Rule 4.2 treats the client as represented for purposes of the discharge and file-transfer communications themselves, not just for the underlying matter, so the discharged lawyer needs successor counsel's consent before contacting the client about either topic.

Common questions

Q: My former client fired me and hired a new lawyer. Can I call the client to talk about handing over the file?

A: Not without the new lawyer's consent. The panel held Rule 4.2 bars contacting the client about the file transfer once the client's authorization confirms successor counsel represents the client for all purposes.

Q: Can I at least contact the client to discuss the circumstances of my own discharge?

A: No. The panel treated the discharge itself as within the scope of what Rule 4.2 protects here, so that conversation also requires successor counsel's consent.

Q: Does it matter that I represented this client on multiple matters over several years?

A: Not on this record. The panel's analysis turned on the client's authorization naming successor counsel as attorney "for all purposes," not on the length or history of the prior representation.

Background and rules framework

The opinion applies Rule 4.2 (Communication with Person Represented by Counsel), the Model Rule counterpart of the same number, quoted as barring a lawyer from communicating "about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The panel also referenced Rhode Island's Rule 1.17 and its commentary for the discharged lawyer's duty to withdraw and avoid prejudicing the client.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (Communication with Person Represented by Counsel) / RI Rule 4.2
• RI Rule 1.17(a)(3) and commentary (discharge and withdrawal)

Other opinions cited:

• Illinois State Bar Association Op. 96-09 (1997): discharged lawyer contacting a represented former client

See also

• RI EAP Op. 2002-01: Duty to a Former Client After Termination, and Rule 4.2 Contact Restrictions
• RI EAP Op. 2000-09: Direct Contact With State Agency Employees Under Rule 4.2
• ISBA Ethics Op. 96-09: Discharged Lawyer Contacting a Represented Former Client

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202002-04.pdf

Original opinion text

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

Final

Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2002-04 Request No. 850
Issued June 6, 2002

Facts:

A client who has been represented by the inquiring attorney in a personal injury case has retained another lawyer. The inquiring attorney received a letter from successor counsel requesting that the client’s file be forwarded to successor counsel. The letter also states that the client does not wish to be contacted by the inquiring attorney regarding the matter. Enclosed with the letter was a “file transfer authorization,” signed by the client, authorizing the inquiring attorney to release the file to successor counsel, discharging the inquiring attorney, and stating that successor counsel is “my attorney for all purposes.” The inquiring attorney states that he/she has represented the client on several matters since 1997. He/she would like to speak with the client concerning the discharge and file transfer.

Issue Presented

The inquiring attorney asks whether Rule 4.2 of the Rules of Professional Conduct prohibits his/her communicating with the client.

Opinion

Rule 4.2 prohibits the inquiring attorney from communicating with the client regarding the inquiring attorney’s discharge by the client, or the file transfer, without successor counsel’s consent.

Reasoning

A client has a right to discharge a lawyer at any time, with or without cause. See Commentary to Rule 1.17. An attorney who has been discharged by a client is required to withdraw (with permission of the court, if required) and to take only those steps necessary to avoid prejudice to the client’s rights. See Rule 1.17(a)(3).

The client in the instant inquiry has severed his/her relationship with the inquiring attorney. The authorization signed by the client expressly states that the client has retained successor counsel, and considers successor counsel “my attorney for all purposes.” Rule 4.2 applies. It states:

Rule 4.2. Communication with Person Represented by Counsel. – In representing a client, a lawyer shall not communicate about the subject of the representation with a Final Op. 2002-04
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party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The Panel concludes that Rule 4.2 prohibits the inquiring attorney from communicating with the client regarding the file transfer or the inquiring attorney’s discharge without first obtaining the consent of successor counsel. See Illinois State Bar Assoc.Op. 96-09 (1997).