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Prof Responsibility • Candor
PR#080
Legal Definition
In the representation of a client, a lawyer must not communicate about the matter directly with another person they know to be represented by counsel unless the person's counsel has granted permission or they are otherwise authorized by law or court order to make the direct communication— this applies even where the represented person initiated the communication or personally consented.
Plain English Explanation
Lawyers have a special duty to avoid talking directly to people who already have their own lawyers about an ongoing legal matter. It's like a "no trespassing" sign on someone's property - you're not allowed to go there without permission.
When a lawyer represents a client, they can't reach out to the person on the other side of the legal issue if that person has their own lawyer. This applies to all types of communication - phone calls, emails, text messages, or even in-person chats. The only exceptions are if the other person's lawyer says it's okay or if a judge or law specifically allows it.
This duty exists even if the person with a lawyer starts the conversation or says they don't mind talking. It's like being offered a slice of cake on a diet - even if someone offers, you still shouldn't take it because you know it's not allowed.
Why does this matter? Well, it protects people from potentially being tricked or pressured by a skilled lawyer. Just like you wouldn't want a car salesperson talking to your elderly grandparent alone about buying an expensive sports car, the legal system doesn't want lawyers talking to the other side without their lawyer present.
This rule also helps keep the legal process fair and organized. It's similar to how in sports, team captains talk to referees instead of having all the players argue calls. By making lawyers communicate through proper channels, it helps prevent misunderstandings and ensures everyone's rights are protected.
In practice, this means lawyers often have to be careful about who they talk to and what they say. For example, if a lawyer runs into the opposing party at the grocery store, they should avoid discussing the case, even if the other person brings it up. It might seem awkward or inefficient sometimes, but it's an important safeguard in our legal system.
This duty connects with other legal concepts too, like attorney-client privilege. By preventing direct communication, it helps ensure that confidential information stays protected. It's one piece of the larger puzzle that makes up a fair and ethical legal system.
When a lawyer represents a client, they can't reach out to the person on the other side of the legal issue if that person has their own lawyer. This applies to all types of communication - phone calls, emails, text messages, or even in-person chats. The only exceptions are if the other person's lawyer says it's okay or if a judge or law specifically allows it.
This duty exists even if the person with a lawyer starts the conversation or says they don't mind talking. It's like being offered a slice of cake on a diet - even if someone offers, you still shouldn't take it because you know it's not allowed.
Why does this matter? Well, it protects people from potentially being tricked or pressured by a skilled lawyer. Just like you wouldn't want a car salesperson talking to your elderly grandparent alone about buying an expensive sports car, the legal system doesn't want lawyers talking to the other side without their lawyer present.
This rule also helps keep the legal process fair and organized. It's similar to how in sports, team captains talk to referees instead of having all the players argue calls. By making lawyers communicate through proper channels, it helps prevent misunderstandings and ensures everyone's rights are protected.
In practice, this means lawyers often have to be careful about who they talk to and what they say. For example, if a lawyer runs into the opposing party at the grocery store, they should avoid discussing the case, even if the other person brings it up. It might seem awkward or inefficient sometimes, but it's an important safeguard in our legal system.
This duty connects with other legal concepts too, like attorney-client privilege. By preventing direct communication, it helps ensure that confidential information stays protected. It's one piece of the larger puzzle that makes up a fair and ethical legal system.
Hypothetical
Hypo 1: Bob is representing Sam in a divorce case against Sam's wife Amy. One day, Bob runs into Amy at the grocery store. Sensing an opportunity, Bob strikes up a conversation and casually mentions how much better off Amy would be if she agreed to Sam's settlement terms. Result: Bob has violated the duty not to contact represented parties. Even though the encounter was seemingly coincidental, Bob knowingly communicated about the case with Amy, whom he knew to be represented by counsel, without first obtaining permission from Amy's lawyer. The fact that Amy didn't immediately object doesn't excuse Bob's conduct.
Hypo 2: Bob is representing Sam in a personal injury lawsuit against MegaCorp. Bob wants to interview some MegaCorp employees about safety practices. Without contacting MegaCorp's lawyers, Bob shows up at a MegaCorp facility and starts questioning workers. Result: Bob has likely violated the duty. Even though he's not speaking directly to named parties in the lawsuit, current employees who can bind the company or whose conduct is at issue in the case are generally off-limits without permission from MegaCorp's counsel. Bob should have coordinated any employee interviews through proper channels.
Hypo 3: Bob is representing Sam in a dispute with Neighbor Nancy over a property line. Bob knows Nancy has a lawyer, but Nancy keeps calling Sam to try to work things out directly. Sam asks Bob if he can just talk to Nancy since she's being so persistent. Result: Bob must advise Sam not to discuss the case directly with Nancy, despite her initiation of contact. The duty extends to prohibiting lawyers from advising their clients to do what the lawyers cannot do themselves. Bob should instruct Sam to direct Nancy to communicate only through their respective attorneys.
Hypo 2: Bob is representing Sam in a personal injury lawsuit against MegaCorp. Bob wants to interview some MegaCorp employees about safety practices. Without contacting MegaCorp's lawyers, Bob shows up at a MegaCorp facility and starts questioning workers. Result: Bob has likely violated the duty. Even though he's not speaking directly to named parties in the lawsuit, current employees who can bind the company or whose conduct is at issue in the case are generally off-limits without permission from MegaCorp's counsel. Bob should have coordinated any employee interviews through proper channels.
Hypo 3: Bob is representing Sam in a dispute with Neighbor Nancy over a property line. Bob knows Nancy has a lawyer, but Nancy keeps calling Sam to try to work things out directly. Sam asks Bob if he can just talk to Nancy since she's being so persistent. Result: Bob must advise Sam not to discuss the case directly with Nancy, despite her initiation of contact. The duty extends to prohibiting lawyers from advising their clients to do what the lawyers cannot do themselves. Bob should instruct Sam to direct Nancy to communicate only through their respective attorneys.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
What must a lawyer do if they know that their witness intends to lie in their testimony?
