Can a plaintiff's lawyer contact represented defendants, by mail or at a deposition, to advise them of their right to separate counsel when their insurer-retained lawyer may have a conflict?
Apply this to your situation
This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
In a personal-injury case, the defendant company had limited insurance coverage, and recent results in similar cases suggested an excess verdict could reach the defendants' personal assets. The company owner and the driver were both represented by the same lawyer, retained by the insurer. Defense counsel refused to confirm whether the defendants had been advised of their right to separate counsel and objected to plaintiff's counsel advising them of that right. Plaintiff's counsel asked whether he could advise the defendants, by mail or at depositions, of their right to separate counsel.
The committee identifies Rule 4.2 as controlling: a lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer, without that lawyer's consent or authorization by law. Citing LEO 521, the committee notes it has held that even where opposing counsel is wrongfully withholding information from his own client, the attorney still may not contact that represented party directly. The same result follows here despite the suspected conflict: Rule 4.2 contains no exception other than contact "authorized by law," and this situation does not fall within that narrow exception.
The committee addresses both proposed methods of contact. Contact by mail is plainly the kind of communication Rule 4.2 prohibits. Giving advice to a represented party in the presence of his lawyer, with no advance consent, is also prohibited, because such a "surprise" contact would not let opposing counsel decline the communication, only comment on it after the fact. Rule 4.2 requires the consent of opposing counsel, not merely his presence. The lawyer therefore may communicate with the represented defendants neither by mail nor at the deposition unless opposing counsel consents.
Currency note
This opinion was issued in 2001. Virginia's Rule 4.2 may have changed since. Verify against current rules before relying on any specific requirement mentioned here.
In practice
The opinion holds that, under the rules as they stood at the time, Rule 4.2 bars a lawyer from communicating with a represented party about the matter without the other lawyer's consent, and that a suspected conflict in the opposing representation does not create an exception. It further holds that the consent Rule 4.2 requires is not satisfied by opposing counsel's mere presence; advising the party at a deposition without advance consent is still prohibited.
Common questions
Q: Can a lawyer warn the other side's client that their own lawyer may have a conflict?
A: Not by contacting that client directly. The committee holds Rule 4.2 bars communicating with a represented party without the other lawyer's consent, even where the contacting lawyer suspects a conflict in the opposing representation.
Q: Does it matter that the opposing lawyer was allegedly withholding information from his client?
A: No. Citing LEO 521, the committee notes that even where opposing counsel is wrongfully withholding information from his own client, the attorney may not contact that represented party directly.
Q: Is it allowed if the contact happens at a deposition, in front of the opposing lawyer?
A: No. The committee treats unconsented advice given in the lawyer's presence as a prohibited "surprise" contact, because it lets opposing counsel only comment afterward, not decline it. Rule 4.2 requires consent, not just presence.
Background and rules framework
The opinion interprets Rule 4.2 (communication with a represented person; Virginia's analogue to Model Rule 4.2, successor to former DR 7-103(A)(1)), which prohibits a lawyer from communicating about the subject of the representation with a person known to be represented by another lawyer unless that lawyer consents or the contact is authorized by law.
Citations and references
Rules of Professional Conduct:
- Virginia Rule 4.2 (communication with a represented person; former DR 7-103(A)(1))
Other opinions cited:
- Virginia LEO 521: a lawyer may not contact a represented party directly even where opposing counsel is wrongfully withholding information from that party.
See also
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1752.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Committee Opinion
March 29, 2001
LEGAL ETHICS OPINION 1752
CONTACT WITH REPRESENTED PARTY .
You have presented a hypothetical situation in which the defendant/company in a personal
injury case has limited insurance coverage. Recent settlements and verdicts in similar cases
indicate the possibility of an excess verdict which would exceed defendant’s insurance coverage,
exposing defendants’ personal assets. Defendants (company owner and driver) are represented
by the same attorney, who was retained by the insurance company. Defense counsel refuses to
acknowledge Plaintiff's inquiry as to whether the defendants have been advised of their right to
separate counsel and objects to Plaintiff's counsel advising the defendants in this regard.
Under the facts you have presented, you have asked the committee to opine as to whether
Plaintiff's counsel can advise the defendants by mail or at depositions of their right to separate
counsel.
The appropriate and controlling rule relative to your inquiry is Rule 4.2, which states:
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 or is authorized by law to do so.
Interpreting Rule 4.2’s predecessor [former Discipline Rule 7-103(A)(1), DR:7-103(A)(1)], this
committee opined that even where the opposing counsel is wrongfully withholding information
from his client, an attorney may not directly contact that opposing party. LEO 521 [LE Op. 521].
Similarly, despite his concerns that the opposing counsel may have a conflict of interest, the
attorney in the present inquiry is prohibited from contacting the opposing party without consent
of the opposing counsel. The basic prohibition of Rule 4.2 contains no exception other than when
the contact is “authorized by law.” The attorney in the present context is not within that narrow
exception.
The committee notes that the inquiry asks about contact via mail and in person at depositions.
Clearly, the contact by mail is of the sort prohibited by Rule 4.2. Moreover, the committee
opines that giving advice to a party in the presence of his lawyer, with no advance consent, is
also prohibited. Such a “surprise” contact would not afford the opposing counsel the opportunity
to decline the communication, but only to comment upon it afterward. Rule 4.2 requires consent
of opposing counsel, not merely his presence. Therefore, the committee opines that the attorney
in this inquiry may communicate with the opposing client neither through mail nor at the
deposition unless opposing counsel has consented.
Committee Opinion
March 29, 2001
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