California Bar Journal
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Doing the right thing can trump no-contact rule

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Diane KarpmanThe anti-contact rule has tremendous negative implications in the civil arena, where it can result in disqualification of counsel or worse. Lawyers can be disciplined for ex parte contact violations, but those cases ordinarily involve a whole laundry list of other horribles.

Rule of Professional Conduct 2-100 prohibits direct or indirect communication regarding the representation of a party the lawyer knows to be represented by counsel. Al-though allegedly designed to protect the attorney-client relationship by preventing overreaching, this rule has a certain protectionist odor, similar to our restrictions on advertising and solicitations.

Restricting lawyers from indirectly accomplishing that which they cannot accomplish directly is an overarching principle in many rules. If you too have a 77-year-old mother, with a tendency to brag about her offspring, almost soliciting total strangers for cases in areas in which you don't even practice, you may have to caution her to exercise restraint. Encompassed here would also be investigatory activity, which could fall outside of the parameters of the rule, since technically no "matter" exists. We have affirmative duties of investigation, since, "Frivolous litigation is frequently avoided by a careful lawyer's investigation of a client's claims before filing suit." Jorgensen v. Taco Bell (1996) 50 Cal. App. 4th 1398, 1403. Failure to investigate can result in sanctions or potential liability for malicious prosecution.

Application of the rule becomes provocative in group representation or corporate representation. This is a "bright-line" rule, mandating actual knowledge of representation. Presumptive or constructive knowledge is soundly rejected, demonstrating the increasingly narrow interpretation of the rule.

U.S. v. Talao (9th Circ. 2000) 222 F. 3d 1133, demonstrates that doing the "right thing" can trump the technical application of the rules. Often lawyers intuitively know what the proper re-action is to a particular circumstance.

Visualize the dedicated bookkeeper of the corporate defendant, being pressured by her employer to give false testimony, but she doesn't want to commit perjury, obstruction of justice, or be represented by unknowing corporate counsel.

In the hallway, she unloads her tale of woe to the prosecuting AUSA, who is now in a real pickle. Obviously, there is no attorney-client relationship to protect, and "an automatic, uncritical application of rule 2-100 would effectively defeat its goal of protecting the administration of justice," not to mention potential concerns with the crime fraud issues. A transparent conflict arose, because defense counsel could not concurrently represent the diametrically opposed honest and dishonest. "It would be an anomaly to allow the subornation of perjury to be cloaked by an ethical rule . . . ." Id at 1140.

Yet, the court realized that manipulation can occur in this situation, and a lawyer could be set up. Hope-fully, Enron's lawyers are already consulting with their own counsel, since when the finger pointing ends, all too often the lawyers are left holding the bag. Dishonest corporate officials "are willing to throw lawyers to the wolves [to]. . . avoid prosecution or a longer prison sentence. . . . Claims of lawyer misconduct . . . should be viewed with a most critical eye." Id at 1142.