The power to take over a practice

by Randall Difuntorum

The State Bar's Standing Committee on Professional Responsibility (CO-PRAC) has issued a new advisory opinion on the topic of communication with represented parties. State Bar formal opinion no. 1996-145 addresses the issue of whether an attorney is required to ask an opposing party if that party is represented by counsel prior to communicating with that party concerning the subject of representation.

COPRAC interprets rule 2-100 ("communication with a represented party") of the California Rules of Professional Conduct to mean that an attorney who does not have reason to know whether a party is represented by counsel is not required to inquire if the party is represented. However, COPRAC cautions that prudent attorneys should inquire if a party is represented in situations where it is not clear whether a party is represented.

Rule 2-100, in part, provides what "[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer."

COPRAC construes this language to mean that the rule applies whenever an attorney "knows" that the opposing party is represented. While COPRAC finds no definition of the operative term "know" in the rules, case law and other authorities are cited in support of the proposition that an opposing party is known to be represented by counsel according to a reasonable attorney standard and not by what an attorney actually knows.

One authority cited by COPRAC is a disciplinary case, Abeles v. State Bar (1973) 9 Cal.3d 603 [108 Cal.Rptr. 359], in which the California Supreme Court held that an attorney violated former rule 12, a predecessor provision to rule 2-100.

Knowledge of representation

In Abeles, the court found that a defense attorney knew that a plaintiff was represented by counsel despite the fact that the plaintiff expressly denied such representation. The court reasoned that the defense attorney's knowledge that a law firm had previously appeared as attorney of record for the plaintiff constituted knowledge that the plaintiff was represented and that the plaintiff's statements to the contrary did not eradicate this knowledge.

In accordance with the Abeles case and other authorities, COPRAC observes that the test for determining whether an attorney "knows" a party is represented appears to be an objective one which will be applied to the facts of each individual case.

COPRAC also states that the means of the communication (i.e., in writing, in person or by telephone) is one factor that may, with other circumstances, lead to an inference of knowledge or the need for further inquiry.

Finally, COPRAC notes that rule 2-100 is applicable regardless of whether the communication is initiated by the party rather than the attorney.

The ethics opinions of COPRAC are advisory only. They are not binding upon the courts, the State Bar, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the bar.

To obtain full text copies of any State Bar formal opinion, call 415/241-2157.

Randall Difuntorum is a staff attorney in the State Bar's Office of Professional Competence, Planning & Development.