Ethics Opinion

Opinion 11-03

March 2011

Summary: As a general proposition it is not a violation of Rules 4.2 and 8.4(a) for a lawyer to advise her client to urge another person to release an attachment on the client's property, even though the other person is represented by counsel. The lawyer would, however, violate Rule 4.2 if she handed the other person a release of the attachment without first obtaining  the permission of the other person's lawyer.

Facts: Client wishes to sell real estate he owns but his sister has an attachment on the property.  The sister is represented by counsel. Lawyer inquires whether Rule 4.2 prevents her from advising her client that he urge his sister to reach an agreement with him to release her attachment. Lawyer also inquires whether she may prepare a release of the attachment and hand it to the sister when the sister's attorney is not present.

Discussion: Rule 4.2 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 or is authorized by law to do so." Comment 1 to Rule 4.2 states that "parties to a matter may communicate directly with each other." Rule 8.4, however, states that "It is professional misconduct for a lawyer to:  (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . ."

There is tension between Rule 8.4(a) and Comment 1 to Rule 4.2.  One possible interpretation of 8.4(a) is that urging one's client to take action that the lawyer him- or herself is prohibited from taking is violating the Rule "through the acts of another." On the other hand, it would seem inconsistent with a lawyer's duty of competent representation to refrain from advising a client to talk to another party if the lawyer thought that was a good idea, especially since Comment 1 to rule 4.2 expressly permits such communications.

The Model Rules recommended by the American Bar Association seek to resolve the tension. The Model Rules contain the same language as our Comment to Rule 4.2 quoted above, but they add to the sentence that "parties to a matter may communicate directly with each other" the additional language that "a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make." The Model Rules also add similar qualifying language in Comment [1] to Rule 8.4, which states that Rule 8.4(a) does not prohibit a lawyer from advising a client about "action that the client is legally entitled to take."

Even though the Massachusetts Rules do not contain this additional language in the Comments to Rules 4.2 and 8.4, we think it likely that the Supreme Judicial Court would regard the language as clarifying and not as changing the meaning of the Rules, at least in situations where the lawyer has not so scripted the client's communication as to make the client's communication the lawyer's own.  We conclude, therefore, that simply urging the client to talk with his sister about the attachment and giving him general advice about the conversation would not violate Rule 4.2 or Rule 8.4(a).

We believe, however, that the lawyer would cross the line if she prepared a release of the attachment and presented it to the sister for execution without the knowledge and express permission of the sister's lawyer.  In our view, handing the sister the release constitutes a forbidden communication, even if the lawyer does not say a word.  The lawyer's message to the sister is "Here is something for you to sign."  In addition, as we noted in our Opinion 05-01, the SJC takes the position that Rule 4.2 serves the twin purposes of "preserving the mediating role of counsel on behalf of their clients" and "protecting clients from overreaching by counsel for adverse interests."  Messing, Rudavsky & Welicky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347, 352 (2002).  It seems to us that presenting a release to the sister directly would defeat both those purposes. We therefore conclude that providing the sister with a release without first obtaining the consent of the sister's attorney would violate Rule 4.2.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on January 20, 2011.