Can a government entity's lawyers send a litigation-hold e-mail asking employees to preserve documents to an employee who is the represented plaintiff in the suit against the entity?

Plain-English summary

Opinion 13-01 addresses a government entity facing a claim, often an employment-discrimination claim brought by one of its own employees. The entity's attorney's office sends all relevant employees an e-mail with a litigation-hold notice and questions about where potentially relevant documents are located. Because the complaining employee is also a relevant employee, that represented plaintiff would receive the e-mail too. The question is whether sending the e-mail to all relevant employees, including the represented plaintiff, violates Utah Rule of Professional Conduct 4.2.

The Committee concludes it does. It addresses the question only under Rule 4.2(a)'s general prohibition on communicating with a represented party about the subject of the representation, declining to opine on the enumerated exceptions in paragraphs (b) through (e). Drawing on Comment 5, the Committee reasons that the closer the communication is to the case at issue, the more likely it violates the Rule, and that to be acceptable a communication must concern a different, unrelated topic. The litigation-hold e-mail asks the employee to preserve documents related to the represented party's own claims and to answer questions about their location, so even though little substantive information is exchanged, the communication is about the subject of the representation, not outside its scope or a separate matter.

The Committee also finds the "authorized by law, rule, or court order" exception unlikely to apply. The entity's duty to preserve evidence requires only that it preserve evidence, not that its attorney communicate directly with the represented party. The opinion gives concrete alternatives the entity could use: send the hold e-mail to all relevant employees except the represented party and send a similar notice to that party's attorney, or have a non-lawyer (a supervisor or HR representative) issue a standard-form hold e-mail, provided the lawyer is not so involved in creating it for a particular individual that it becomes a communication from the lawyer "through the acts of another" under Rule 8.4(a).

In practice

Under this opinion, a government entity's lawyers may not send a litigation-hold e-mail directly to an employee who is the represented adverse party, because the notice concerns the subject of the representation. Per the opinion, the analysis turns on whether the communication relates to the case in which the party is represented; a document-preservation request about the party's own claims does, even if little substantive information is exchanged. The opinion identifies routes that comply: excluding the represented party from the lawyer-sent e-mail and notifying that party's counsel instead, or having a non-lawyer issue a standard-form hold so long as the lawyer does not direct it at the individual in a way that makes it the lawyer's communication "through the acts of another" under Rule 8.4(a). The opinion was issued in 2013; confirm the current text of Utah Rules 4.2 and 8.4 before relying on the numbering here.

Common questions

Q: Can a lawyer send a litigation-hold notice to a represented opposing party?

A: No, under this opinion, where the party is adverse and represented. The Committee concludes the hold e-mail concerns the subject of the representation (it asks the party to preserve documents about its own claims), so sending it directly to that party violates Rule 4.2(a).

Q: Does the duty to preserve evidence authorize contacting the represented party directly?

A: No. The opinion states the preservation duty requires only that the entity preserve evidence, not that its attorney communicate directly with the represented party, and the Committee was directed to no statute or rule requiring such direct contact.

Q: How can the entity issue a litigation hold without violating Rule 4.2?

A: The opinion suggests sending the hold e-mail to all relevant employees except the represented party and sending a similar notice to that party's attorney, or having a supervisor or HR representative send a standard-form hold, provided the lawyer's involvement does not make it the lawyer's own communication through another under Rule 8.4(a).

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 4.2 (communication with a person represented by counsel), which corresponds to ABA Model Rule 4.2, and references Rule 8.4(a) (misconduct through the acts of another). Rule 4.2(a) bars a lawyer, in representing a client, from communicating about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, absent the other lawyer's consent or authorization by law, rule, or court order. The Committee relies on Comments 5 and 6 to Rule 4.2 to distinguish communications outside the scope of the representation or on a separate matter (potentially permissible) from those about the subject of the representation, and to confirm that parties may communicate directly with each other.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / Utah RPC 4.2(a), cmts. 5, 6 (communication with represented person)
• MR 8.4 / Utah RPC 8.4(a) (misconduct through the acts of another)

Other opinions cited:

• Utah Ethics Advisory Opinion No. 95-05 (scope of the "authorized by law" exception)
• ABA Model Rule 4.2, cmt. 5

See also

• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
• Utah Ethics Op. 19-04: When Appointed Criminal Defense Ends for Rule 4.2

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2013-01-2/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2013-01.pdf

Original opinion text

Best-effort transcription from a two-column PDF, reassembled in the opinion's own reading order. Minor errors may remain; the linked PDF is authoritative.

Opinion No. 13-01

Utah Ethics Opinion

Utah State Bar Ethics Advisory Opinion Committee

April 9, 2013

ISSUE

When a lawsuit or claim is filed against a government entity, the attorney's office of that entity sends all relevant employees an e-mail including a litigation hold notice and certain questions regarding the location of documents possibly relevant to the pending claim. If the claim has been brought by an employee, such as an employment discrimination claim, the complaining employee would also receive the e-mail. In this situation, does the attorney's office sending this e-mail to all relevant employees, including a represented plaintiff or complaining employee, constitute a violation of Utah Rule of Professional Conduct 4.2?

OPINION

It is a violation of Rule 4.2 for a government entity's attorney's office to send a litigation hold e-mail to an adverse represented employee because the e-mail relates to the subject of litigation and none of the exceptions listed in Rule 4.2 apply.

ANALYSIS

This issue is controlled by Rule 4.2. Rule 4.2(a) provides that:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client if authorized to do so by any law, rule, or court order, in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.

The referenced exceptions in Paragraphs (b), (c), (d), and (e) deal with, respectively, cases involving unbundled legal services, government lawyers engaged in civil or criminal enforcement matters, organizations as represented persons, and inquiries about privileged communications and settlement. The Committee does not express an opinion regarding these specific, enumerated exceptions, but instead addresses the issue presented only under Paragraph (a)'s general requirement [1]

Rule 4.2(a) prohibits an attorney from communicating with a represented party "about the subject of the representation." The term "subject of the representation" is not clearly defined by the Rule. However, Comment 5 to the Rule indicates that an ex parte contact with a represented party might be acceptable if "the communication is outside the scope of the representation" or "regarding a separate matter." See Utah R. Prof. Cond. 4.2 at cmt. 5. This language demonstrates that the closer the subject of communication is to the case at issue, the more likely it will violate the Rule. It also indicates that for a communication to be acceptable, it must relate to a different topic that is unrelated to the case in which the party is represented.

The hypothetical communication described in the issue here presented relates to the subject of the representation. The e-mail requests that the employee preserve all documents related to the represented party's claims and answer questions about those documents' location. Although there is presumably little substantive information requested or exchanged, the communication is not "outside the scope" of the representation or related to "a separate matter." See Utah R. Prof. Cond. 4.2 at cmt. 5. Therefore, the proposed e-mail would be a communication about the subject of the representation.

The communication at issue is also unlikely to be permissible as provided by "any law, rule, or court order." Although the Utah Rules and comments do not elaborate on what constitutes a rule or law under this provision, this Committee and other jurisdictions have noted that this exception generally includes things such as the exercise of constitutional or legal rights to communicate with the government or government agents' investigation prior to commencement of criminal proceedings. See Utah Ethics Advisory Opinion No. 95-05; see also ABA Model R. Prof. Cond. 4.2, cmt. 5.

One rule or law that might arguably apply is the government entity's obligation to preserve evidence. However, that obligation requires only that the government entity preserve evidence related to the matter at issue. It does not require the government entity's attorney to communicate directly with the represented party. For example, the government attorney could send the litigation hold e-mail to all relevant employees except the represented party, and send a similar e-mail to the represented party's attorney. The government entity could also prepare a from hold e-mail to be sent in all cases from a supervisor or HR representative rather than from an attorney.[2] The Committee has not been directed to any specific statute or rule that would require the government attorney to directly contact a represented party in order to fulfill his or her obligation to preserve evidence.

Notes:

[1] The exception in paragraph (c) provides that where a government lawyer is involved in a matter of civil or criminal enforcement, he or she may communicate with a represented party if: (1) the communication is limited to an investigation of a different, unrelated matter; (2) the communication is made to protect against an imminent risk of death or serious bodily harm or substantial property damage; (3) the communication is made at the time of the arrest of the represented person and the person knowingly and voluntarily waives his or her rights to remain silent and to an attorney; or (4) the communication is initiated by the represented person, and the represented person has given a written or recorded voluntary and informed waiver of counsel. See Utah R. Prof. Cond. 4.2(c). Because the inquiry raised in your letter addresses a government lawyer defending against a claim by an employee, these exceptions do not directly apply.

[2] Such a form-e-mail from someone other than the lawyer must not violate Rule 8.4(a), which provides that a lawyer must not "violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." However, so long as the lawyer is not so involved in creating it for a particular Individual that the e-mail is essentially a communication from the lawyer "through the acts of another," such a form e-mail would be permissible. See Utah R. Prof. Cond. 4.2, cmt. 6 ("Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication the client is legally entitled to make").