When deposing an adverse party in one case, must a lawyer notify the party's separate counsel in a related second case if the questions overlap?

Plain-English summary

The inquiry involved a client in two separate lawsuits with his landlord. The landlord was represented by the same counsel in both actions, while the defendant was represented by separate counsel in each action. The question was whether the lawyer representing the landlord in both actions could depose the defendant in connection with one lawsuit without giving notice to the deponent's attorney of record in the other lawsuit.

After considerable discussion, the committee was of the opinion that where legitimate questions asked during a deposition might overlap both cases, the deposing lawyer is required by RPC 4.2 and RPC 8.4(c) and (d) to give notice to the adverse lawyer. The committee believed that resolved the other questions raised in the inquiry.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules then numbered RPC 4.2 (communication with a represented person) and RPC 8.4(c) and (d) (misconduct) correspond to Model Rules 4.2 and 8.4 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer depose an adverse party without notifying that party's counsel in a separate related case?

A: Per the opinion, not if the questions might overlap. The committee was of the opinion that where legitimate deposition questions might overlap both cases, the deposing lawyer is required by RPC 4.2 and RPC 8.4(c) and (d) to give notice to the party's lawyer of record in the other case.

Q: What triggers the duty to notify the other case's counsel?

A: The committee tied the duty to overlap: the obligation arises where legitimate questions asked during the deposition might overlap both cases.

Background and rules framework

The opinion applies the rules then numbered Washington RPC 4.2 (communication with a person represented by counsel) and RPC 8.4(c) and (d) (conduct involving dishonesty or that is prejudicial to the administration of justice), corresponding to Model Rules 4.2 and 8.4. The committee treated a deposition in one case that reaches into a second, separately represented case as the kind of contact with a represented person that requires notice to that person's lawyer of record in the second case.

Citations and references

Rules of Professional Conduct:

• Washington RPC 4.2 (communication with a represented person), corresponding to Model Rule 4.2.
• Washington RPC 8.4(c) and (d) (misconduct), corresponding to Model Rule 8.4.

See also

• WSBA Ethics Op. 972: writing directly to a represented adverse party
• WSBA Ethics Op. 1000: contacting an opposing party represented by counsel
• WSBA Ethics Op. 940: contacting the former spouse of an opposing party for information

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=283

Original opinion text

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

Advisory Opinion: 1203
Year Issued: 1988
RPC(s): RPC 4.2; 8.4(c); 8.4(d)
Subject: Direct contact with adverse party; questions in deposition regarding separate matter for which client has other counsel

The Committee considered your inquiry concerning a client who is involved in two separate law suits with his landlord. The Committee understood the facts to be that the landlord is represented by the same counsel in both actions, while the defendant was represented by separate counsel in each action. Your inquiry concerned whether the lawyer representing the landlord in both actions could depose the defendant in connection with one law suit without providing notice to the deponent's attorney of record in the other law suit. After considerable discussion, the Committee was of the opinion that where legitimate questions asked during a deposition might overlap both cases, the deposing lawyer is required by RPC 4.2 and 8.4 (c & d) to give notice to the adverse lawyer. The Committee believes that resolves the other questions raised in your inquiry.