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.