ETH 2011-181.

California Ethics Opinion 2011. ETH 2011-181. THE STATE BAR OF CALIFORNIASTANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2011-1812011ISSUES:May consent under the "no contact" rule of California Rule of Professional Conduct 2-100 be implied, or must it be provided expressly? If consent may be implied, how is implied consent determined?DIGEST: Consent under the "no contact" rule of California Rule of Professional Conduct 2-100 may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party's attorney. AUTHORITIES INTERPRETED: Rule 2-100 of the Rules of Professional Conduct of the State Bar of Califomia.(fn1) STATEMENT OF FACTS Attorney A is conferring with her client (Client A) outside of court when approached by Attorney B. After exchanging pleasantries regarding the weather, the following conversation takes place among Attorney B, Attorney A and Client A:
Attorney A to Attorney B: "Do you really need to call my client's mother to testify in court tomorrow? It really seems unnecessary and abusive under the circumstances. I would ask that you reconsider."
Client A to Attorney B: "Yes, she's quite elderly and it could be traumatic for her."
Attorney B to Attorney A: "Look, I'm sorry, but unless you're willing to be reasonable and settle, I think she's essential to my case. She's a key witness to what happened."
Client A to Attorney B: "You should leave my mother alone! She wasn't even there that day and doesn't really know anything! Besides your client caused this whole mess!"
Attorney B to Client A: "Then we will see what your mother really knows tomorrow."
Has Attorney B violated rule 2-100 by responding in the manner described above? DISCUSSION Paragraph (A) of rule 2-100 of the California Rules of Professional Conduct, entitled "Communication with a Represented Party," provides as follows:
While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. (italics added)
The Discussion to rule 2-100 provides an explanation of the purpose of the rule: "Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule." This is consistent with case law in California: "This rule [referring to a predecessor to rule 2-100] is necessary to the preservation of the attorney-client relationship and the proper functioning of the administration of justice. It shields the opposing party not only from an attorney's approaches which are intentionally improper, but, in addition, from approaches which are well intended but misguided. The rule was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role." (Abeles v. State Bar (1973) 9 Cal.3d 603, 609 [108 Cal.Rptr. 359] (internal quotes and citations omitted). See also Bobele v. Superior Court (1988) 199 Cal.App.3d 708, 712 [245 Cal.Rptr. 144] ("[Predecessor rule to rule 2-100] operates to protect a represented party from being taken advantage of by adverse counsel. . . . [T]he ultimate purpose of rule 7-103 is to preserve the confidentiality of attorney-client communications.").) 1. Consent of the Other Lawyer Consent of the represented party is not sufficient. Rule 2-100 specifies that the consent of the other lawyer is required in order for a member to communicate...

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