Can a lawyer attend a meeting between the lawyer's clients and a represented school's officials about the clients' injury claim?

Plain-English summary

An attorney was asked by a student's parents to represent them regarding personal injuries the student sustained at school. School officials and the child's teacher requested a meeting with the parents to discuss the accident and the injuries. The attorney asked whether it was proper to accompany the parents to that meeting to discuss the injuries with the officials and the teacher.

Assuming the school is represented by counsel, the committee applied Rule 4.2: in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer, unless that lawyer consents or the law authorizes it. The committee noted the rule applies whenever the lawyer knows a person has retained counsel, and that, per ABA Formal Opinion 95-396, the rule imposes no duty to inquire but a lawyer may not avoid it by "closing her eyes to the obvious." Absent the school counsel's permission, the attorney may not speak with current employees who by virtue of their authority can bind the school (citing S.C. Advisory Opinion 94-25).

The committee concluded that while it would be improper for the attorney to discuss the subject of the representation with the represented party without counsel's consent or legal authorization, no rule bars the attorney from merely accompanying the parents to the meeting. It cautioned, however, that a lawyer should not attempt to circumvent Rule 4.2 by using the client as an intermediary for impermissible communications with another represented party (citing S.C. Advisory Opinion 91-17). As a practical matter, the committee observed that it may be difficult to attend the meeting without communicating with school officials, so the lawyer may be well advised to obtain consent from the school district's attorney before attending.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer attend a meeting between clients and a represented opposing party?

A: The committee found no rule barring the lawyer from merely accompanying the clients, but Rule 4.2 bars the lawyer from communicating with the represented party's officials about the matter without their counsel's consent.

Q: Can the lawyer speak to the school's employees at the meeting?

A: The committee concluded that, absent the school counsel's permission, the lawyer may not speak with employees who by virtue of their authority can bind the school on the matter.

Q: Can the lawyer have the clients relay messages to get around Rule 4.2?

A: No. The committee cautioned that a lawyer should not use the client as an intermediary for communications the lawyer could not make directly under Rule 4.2.

Background and rules framework

The opinion interpreted South Carolina RPC 4.2 (communication with a person represented by counsel, including which employees of a represented organization are off-limits), corresponding to Model Rule 4.2, drawing on ABA Formal Opinion 95-396 and S.C. Advisory Opinions 94-25 and 91-17.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: communication with persons represented by counsel.

Other opinions cited:

• ABA Formal Opinion 95-396: no duty to inquire, but no closing one's eyes to the obvious.
• S.C. Bar Advisory Opinions 94-25, 91-17: communicating with a represented organization's employees; not using a client as an intermediary.

See also

• SC Bar Ethics Op. 99-14: Prosecutor and Police Contact

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-25/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-25

An attorney has been asked by a student's parents to represent them in connection with personal injuries the student sustained while in school. School officials and the child's teacher have requested a meeting with the child's parents to discuss the accident and subsequent injuries.

QUESTION:
Is it proper for the attorney to accompany the parents to the meeting to discuss the injuries with the officials and the child's teacher?

SUMMARY:
A lawyer for one party may not discuss his client's case with another party, who is also represented by a lawyer, unless the lawyer has the other counsel's consent or is authorized by law or rule to do so.

OPINION:
This committee assumes that the school is represented by counsel. "In representing a client, a lawyer shall not communicate 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." Rule 4.2. The rule applies whenever a lawyer knows that a person has retained legal counsel. A 1995 formal ABA opinion concluded that the rule does not "imply a duty to inquire" as to whether the person is represented, but a lawyer may not avoid Rule 4.2 "by closing her eyes to the obvious." ABA Formal Op. No. 95-396. Absent the permission of the school's counsel, an opposing lawyer may not speak to current employees who by virtue of their authority are able to bind the school in the situation at hand. S.C. Ethics Advisory Op.# 94-25.

The attorney asks whether it is improper to accompany the parents to the meeting to discuss the injuries with the officials and the child's teacher. While it is improper for the attorney to discuss the subject of the representation with the represented party absent counsel's consent or authorization of law, this committee finds no rule barring the attorney from merely accompanying the parents to the meeting. However, a lawyer should not attempt to circumvent Rule 4.2 by using the client as an intermediary for impermissible communications with another represented party. See S.C. Ethics Advisory Op. # 91-17.

As a practical matter, it may be difficult for the lawyer to attend the meeting and not communicate with school officials. Consequently, the lawyer may be well advised to obtain consent from the attorney for the school district before attending the meeting.