13-01
Opinion No. 13-01
Utah Ethics Opinion
Utah State Bar Ethics Advisory Opinion Committee
April 9, 2013
ISSUE
When a lawsuit or claim is filed against a government entity, the attorney's office of that entity sends all relevant employees an e-mail including a litigation hold notice and certain questions regarding the location of documents possibly relevant to the pending claim. If the claim has been brought by an employee, such as an employment discrimination claim, the complaining employee would also receive the e-mail. In this situation, does the attorney's office sending this e-mail to all relevant employees, including a represented plaintiff or complaining employee, constitute a violation of Utah Rule of Professional Conduct 4.2?
OPINION
It is a violation of Rule 4.2 for a government entity's attorney's office to send a litigation hold e-mail to an adverse represented employee because the e-mail relates to the subject of litigation and none of the exceptions listed in Rule 4.2 apply.
ANALYSIS
This issue is controlled by Rule 4.2. Rule 4.2(a) provides that:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client if authorized to do so by any law, rule, or court order, in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.
The referenced exceptions in Paragraphs (b), (c), (d), and (e) deal with, respectively, cases involving unbundled legal services, government lawyers engaged in civil or criminal enforcement matters, organizations as represented persons, and inquiries about privileged communications and settlement. The Committee does not express an opinion regarding these specific, enumerated exceptions, but instead addresses the issue presented only under Paragraph (a)'s general requirement
[1]
Rule 4.2(a) prohibits an attorney from communicating with a represented party "about the subject of the representation." The term "subject of the representation" is not clearly defined by the Rule. However, Comment 5 to the Rule indicates that an ex...
