Monday, September 26, 2011

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

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