Rule of Professional Conduct 2-100 prohibits an attorney from communicating with a party represented by counsel, either directly or indirectly. The rule does not prohibit the parties from directly communicating with each other, even when the communication is encouraged by counsel. However, lawyers may never do indirectly that which they cannot do directly. Therefore, lawyers cannot make the clients into their messengers.
The rule is aimed toward the preservation of the fragile attorney-client relationship and restricts any intrusion or interference with that relationship. Although the party may be willing to "just talk," it is the attorney's consent or waiver that is required to permit communication between an opposing counsel and the party, in order not to violate the rule.
A violation of this prohibition can result in discipline and can also justify a motion for disqualification if the misconduct (contact) will have a substantial continuing effect on the proceedings. The rule is not designed to "punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings." Note that pending litigation is not required and transactional matters fall squarely within the penumbra of the rule. Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398.
"Actual knowledge of representation in the pending matter at the time of the interview or communication" is required to trigger application of the rule. In Truitt v. Superior Court (1997) 59 Cal.App.4th 1183, the court, in denying a disqualification motion, rejected the fact that the lawyer should have known or had constructive knowledge. In that case, one of the accused attorneys was a former in-house counsel of the defendant's corporation, and allegedly knew that counsel would be provided. The court nevertheless insisted on a "bright line" of actual knowledge, maintaining that presumptive knowledge was insufficient.
In disqualification motions, the court often balances a lawyer's need to conduct careful pre-litigation activities (before the demand letter or inception of a lawsuit) with the preservation of the attorney-client relationship. The pre-litigation investigation may avoid the "file first/investigate later" conundrum which presumably could engender frivolous lawsuits. Some communication is necessary, if for nothing more than to decide if the rule applies. Therefore, the initial inquiry as to the existence of representation would usually not fall within the rule.
Ever since the controversial "Thornburg Memorandum" maintained that the rule did not quite apply to federal prosecutors, some federal courts have permitted pre-indictment noncustodial communications, even where a party is represented by counsel.
Although there is a definite trend toward a more restricted "common-sense" application of the rule, caution is always less costly than defending a motion to disqualify or a State Bar disciplinary complaint.
Diane Karpman of Los Angeles represents attorneys at the State Bar and is an expert witness in legal malpractice, conflicts of interest and partnership dissolutions.