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.