87-25: Truthfulness; Unrepresented Persons

12/1987

Propriety of plaintiff's attorney taking a statement from a person named as a defendant in plaintiff's complaint, but who is unserved and unrepresented by counsel without disclosing to that person her status as a named defendant.

FACTS

The inquiring attorney represents the parents of a young man who was shot to death at a motel. The attorney filed a wrongful death action against eighteen (18) named defendants. After some but not all of the defendants had been served, the attorney contacted one of the unserved defendants who was not yet represented by counsel. The attorney advised the defendant that he represented the plaintiffs, and asked if he could interview her and record the conversation. She consented to both requests. The attorney did not disclose during the initial contact or the recorded interview that she was a named defendant in the action. The defendant was served with a copy of the complaint some time after the interview. Subsequently, the ethical propriety of the attorney's conduct was called into question by the attorney retained to represent the defendant. The inquiring attorney has asked this committee to render an opinion regarding the ethical propriety of his conduct.

QUESTION

Is it proper for an attorney representing a plaintiff to interview and take a statement from a person who has been named as a defendant in the plaintiff's complaint but has not yet been served with process, and is not yet represented by counsel, without disclosing to such person that she is a named defendant in the action?

ETHICAL RULES INVOLVED

ER 4.1. Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person;

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ER 4.2. Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

ER 4.3. Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

ER 4.4. Respect for Rights of Third Persons

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

ER 8.4. Misconduct

It is professional misconduct for a lawyer to:

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OPINION

The conduct upon which this inquiry is based took place prior to the adoption of the Rules of Professional Conduct in Arizona effective February 1, 1985. Normally, this committee will not render opinions on the "questioned ethical propriety of past or continuing conduct.” Statement of Jurisdictional Policies, Paragraph 4. However, such opinions will be rendered when requested by the Board of Governors or another committee of the State Bar. Since the issue presented is deemed to be of significance to the Bar as a whole, and because of its possible recurring nature, the Board of Governors has asked us to address the issue prospectively. Therefore, this opinion does not address the propriety of the attorney's conduct under the former Code of Professional Responsibility, which was operative at the time of the events in question, but is limited to the application of our existing Rules of Professional Conduct to a similar factual situation as they may apply to future conduct.

ER 4.2 of the Rules of Professional Conduct states that "[A] lawyer shall not communicate about the subject of representation with a party the lawyer knows to be represented by another lawyer . . ." ER 4.2 is derived, through Code of Professional Responsibility DR 7-104(A)(1), from Canon 9 of the 1908 American Bar Association Canons of Professional Ethics. See ER 4.2 Code Comparison. The principle underlying Canon 9 was that of assuring to the civil litigant “some of the protection which the Constitution guarantees to criminal defendants." State v. Richmond, 114 Ariz. 186, 191, 560 p.2d 41, 46 (1976), citing State v. Nicholson, 463 P.2d 633, 636 (Wash. 1969). The rule is also designed to prohibit lawyers from taking advantage of litigants. See In re Atwell, 115 S.W.2d 527, 528 (Mo. App. 1938) (attorney violated Canon 9 by settling litigation directly with represented party without the knowledge or consent of party's counsel); Arizona Opinion No. 162 (1964) (unethical for attorney to discuss case with adjuster for defendant's liability insurance company where defendant is represented by counsel, even when adjuster initiated contact; see also, ER 4.4 ("Respect for Rights of Third Persons," "In representing a client, a lawyer shall not... use methods that violate the legal rights of [a third] person").

ER 4.2 does not act as an absolute bar to communications with a person who is only potentially an adverse party. If a complaint has not yet been filed, it is not ethically improper to contact an unrepresented person. Flieger v. Reeb, 120 Ariz. 31, 33, 583 P.2d 1351 (App. 1978). In Flieger, a civil action for assault and battery, the plaintiff's attorney hired a private investigator who tape-recorded an interview with the potential defendants while pretending to be a newspaper reporter. The tape was used at trial for rebuttal testimony. The Court of Appeals found no ethical violation because the complaint was not filed until after the interview. Id., 120 Ariz. at 33, 583 P.2d at 1353.

The court's ruling in Flieger is consistent with ABA Informal Opinion 908 (1966), which held that it is not unethical for counsel for potential plaintiffs to contact potential defendants. That Informal Opinion does not condone such contact with a named defendant who has not yet been served and is therefore unrepresented. The holding in

In W.T. Grant Co. v. Haines, 531 F.2d 671 (28 Cir. 1976), the Second Circuit affirmed a trial court’s finding that plaintiff's counsel should not be disqualified for an alleged violation of DR 7-104(A)(1) (the predecessor to ER 4.2). In Grant, an employee who was regional director of plaintiff's real estate department was invited to plaintiff's office for a meeting at the same time that counsel for the corporation was filing a complaint in which the employee was named as a defendant. Id. at 673. Plaintiff's counsel went to the company's office and conducted extensive interviews with the employee, including a polygraphic examination, without informing him that he was a named defendant in the action. The Second Circuit found there was no ethical violation since the defendant did not come within the literal language of DR 7-104(A)(1), which limited contact with an adverse party represented by [Footnote continued next page] Flieger and ASA Informal Opinion 908 are consistent with Rule 11 of the Arizona Rules of Civil Procedure. Rule 11 states that, by signing a complaint, the attorney is swearing that "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact ....” 16 A.R.S. Rules of Civil Procedure, Rule 11 (emphasis added). An interview with a non-defendant, who is not represented by counsel, may be appropriate, or even required, as a predicate for compliance with Rule 11. Such an interview way result in a decision to either name or not name the individual as a party defendant.

Once a complaint has been filed, however the right to contact the opposing party is restricted. ER 4.2 acts as an absolute bar to direct contact once the opposing party obtains counsel. In our Opinion No. 228 (1967), we found that it was unethical for an attorney to use a private investigator to establish contact with a represented party when the attorney was forbidden to make such a contact directly. See also our Opinion No. 71-13 (1971) (unethical to contact opposing party directly or through third party without consent of party's counsel). Any such contact is unethical even if the opposing party consents to the interview. Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984). See also Abeles v. State Bar, 9 Cal. 3d 603, 510 P.2d 719, 108 Cal. Rptr. 359 (1973) (willful communication with a party represented by counsel upon a subject of controversy without consent of that party's counsel is an ethical violation); and our Opinion No. 162 (unethical for attorney to discuss case with adjuster for represented defendant's insurance company even when adjuster initiated contact).

In this case, the individual being interviewed is not a mere witness or even a potentially adverse party. She is an

[Footnote continued] counsel. The court relied on ABA Informal Opinion 908 (1966), which concluded that it is not unethical for a potential plaintiff's attorney to interview a potential defendant so long as the latter knows the statement is being taken by the lawyer in his capacity as attorney for the plaintiff. Id. The court also relied on the fact that the employee “[a] sophisticated businessman who was questioned on matters within his competence which related to his stewardship and which unquestionably involved his honesty and fiduciary obligations to his employer ... Grant had the right to inquire into this matter even absent... representation of counsel.” Id. at 674-75.

The court in Grant not only misinterpreted ABA Informal Opinion 908, it considered a single ethical rule, DR 7-104 (A) (1), and concluded that there was no violation because the rule only prohibited contact with an opposing party who is represented by counsel.adverse party, although one who is as yet unrepresented because of the manner in which the attorney proceeds. In other words, the attorney knows the individual in question is an adverse party, but she does not know it because the attorney does not tell her. An attorney's failure to disclose this critical fact fails to conform to the requirements of ER's 4.1, 4.3, 4.4 and 8.4.

ER 8.4(c) provides that: "It is a professional misconduct for a lawyer to... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” An attorney who knows that a party misapprehends the attorney's role in an interview and does not correct the misapprehension is guilty of deceit and misrepresentation. See Matter of Milita, 99 N.J. 336, 492 A.2d 380 (1985). In Milita, an attorney who was representing a criminal defendant went to interview a prosecution witness who was in the hospital under guard. The guard, in the presence of the attorney, told the witness that “your attorney is here to see you." Milita, 492 A.2d at 384. The attorney did not correct the guard's misstatement. The witness then consented to the interview under the impression that the attorney was his appointed counsel from the public defender's office. The attorney did not correct the misrepresentation because he realized that "if he stated his express purpose, the witness would either ask him to leave or take more damaging action.” Id In holding that the attorney's conduct violated DR 1-102(A)(4), the Supreme Court of New Jersey stated that "[s]ilence is as often as great a misrepresentation as not.” Id.

The position of the New Jersey Supreme Court is supported by ABA Informal Opinion No. 86-1518 (1986). The committee found that it would be a violation of ER 8.4(c) and 4.1(b) for an attorney who knew that the opposing party had inadvertently omitted an important bargained-for provision from a contract to say nothing. The committee concluded that the failure to communicate the omission to the opposing party would constitute deceit and misrepresentation.

In this case, the conduct in question would fall squarely within the parameters of ER 8.4(c). By deliberately withholding the fact that the person being interviewed was a named defendant in the lawsuit, an attorney would create the the impression that he was conducting a witness interview rather than obtaining information to be used against the defendant in an adversarial proceeding. As in Milita, if the defendant was aware of the true nature of the communication, she probably would not consent to the interview, much less

ER 8.4(c) is derived from former DR 1-102(A) (4), which also prohibited a lawyer from engaging in conduct that involved dishonesty, fraud, deceit or misrepresentation. Rule 8.4 Code Comparison (1986). its tape-recording. In any event, she would be denied the opportunity to make an informed choice. The attorney's failure to disclose the existence of the adversarial relationship between his client and the defendant would be at best misrepresentation and deceit, and at worst fraud, under the Rules.

ER 4.3 of the Rules of Professional Conduct states that, when dealing with an unrepresented person, if “the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” ER 4.3 is a new provision in the Rules of Professional Conduct and has no direct counterpart in the former Code of Professional Responsibility. Rule 4.3 Code Comparison (1986). Although the rule is new to the Rules of Professional Conduct, the courts have long required an attorney to correct a misunderstanding on the part of an unrepresented opposing party. In Lyons v. Paul, 321 S.W.28 944 (Tex. Civ. App. 1958), the court held that it was unethical for an attorney who was contacted by the opposing party not to advise her immediately that he was on the opposite side of the litigation and could perform no legal services for her. The out-of-state defendant, who was representing herself, thought that she was supposed to file her answer with plaintiff's counsel. Plaintiff's counsel stated that he did not correct her misunderstanding because he was under no duty to do so. The court found that, even though there might not be a legal duty for the attorney to provide this information to the opposing party, there was an ethical duty to do so. “Since appellee's attorney was an officer of the court, he owed the court the duty not to conceal material facts." Lyons, 321 S.W.2d at 950.

In this case, the attorney not only knows that the unrepresented defendant misunderstands the lawyer's role, he is deliberately creating a situation in which the defendant will be unaware of their adversarial relationship in order to obtain a potentially prejudicial statement from her, before she realizes that she should consult with counsel. ER 4.3 obligates an attorney to make a reasonable effort to correct an inadvertent misunderstanding of this sort; a fortiori, ER 4.3 implicitly prohibits an attorney from deliberately creating such a misunderstanding.

The duty under ER 4.3 to correct misunderstandings of unrepresented defendants is reinforced by ER 4.1, which states that "In the course of representing a client, a lawyer shall not knowingly... make a false statement of material

ER 4.3, adopted by the House of Delegates of the American Bar Association on August 2, 1983, was not in existence when the Second Circuit decided Grant, discussed in n.1, supra. fact or law to a third party.” Even though a lawyer generally has no affirmative duty to inform an opposing party of relevant facts, he is required to be truthful when dealing with others on his client's behalf. The comment to ER 4.1 makes it clear that an attorney can be guilty of misrepresentation by failing to act or speak. ("Misrepresentations can also occur by failure to act.") If a lawyer reveals only facts favorable to his client and conceals unfavorable facts, knowing that a third party will rely on the information conveyed, the lawyer is guilty of misrepresentation. Roberts v. Ball, Hunt, Bart, Brown & Baerwitz, 57 Cal. App. 3d 104, 128 Cal. Rptr. 901 (1976); see also ABA Informal Opinion 86-1518 (supra).

In Roberts, the attorney wrote an opinion letter and knew that his client intended to show it to an adverse party. The letter stated that the client's firm was a duly organized general partnership, even though the attorney knew that some of the partners believed that they were members of a limited partnership. Roberts, 57 Cal. App. 3d at 107-108, 128 Cal. Rptr. at 903-904. The court held that the attorney had a duty to reveal the existence of the dispute about the nature of the partnership when he knew the third party would rely on his assertions, and noted that "Half the truth is often as misleading as outright falsehood." Id., 57 Cal. App. 3d at 111, 128 Cal. Rptr. at 906. See also Lyons, 321 S.W.2d at 950 (attorney has ethical duty to inform unrepresented opposing party of the adversarial nature of the relationship).

In this case, the unserved defendant would be told a half-truth that is by implication a false statement of material fact. An attorney who reveals that he is the attorney for the decedent's parents, but does not reveal the single most critical piece of information needed by the adverse party in order to protect her rights and make an informed choice -- that she is a defendant in the action -- is taking advantage of a lay person and effectively denying that person her legal rights, a violation of ER 4.4. The omission of this highly relevant fact would not only enable the attorney to gain an unfair advantage for this client, it would be a serious misrepresentation that violates the attorney’s ethical duty to be truthful in making statements to others.

In Opinion 80-46 of the Association of the Bar of the City of New York (1980), that Association outlined the disclosures that must be made even to mere witnesses (who were the unrepresented employees of a corporate defendant). It was concluded that the interviewer should disclose (1) who the interviewer represents; (2) the fact that the information is sought in connection with litigation; (3) a description of the dispute; and (4) the fact that any disclosure is voluntary.

If an attorney should make these disclosures to nonparty witnesses, there is at least a similar disclosure obligation to an unserved defendant. The unserved defendant certainly has a greater interest in the use to which his statements will be put than does a mere witness. At a minimum, the inquiring attorney should have disclosed the four categories of information described in the New York City Bar Opinion. In order to satisfy fully the third requirement, a description of the dispute, the attorney would have to, reveal the names of the parties of the dispute.

It is accordingly the opinion of the committee that it would be unethical for an attorney to contact and interview a named but as yet unserved defendant in litigation instituted by the attorney without revealing the adversarial nature of the relationship that exists between the defendant and the attorney's client.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.