UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 92-07
A is a lawyer married to B. B formerly was married to C. A wishes to contact C regarding the children of B and C (A's step-children). D, the lawyer for C, has informed A that he is not to contact C directly regarding the children. A does not represent B, and there is no on going litigation in Family Court.
Question:
Acting as an interested party and not as an attorney, may A contact another represented party directly regarding concerns, problems, or matters relating to the children?
Summary:
Rule 4.2 prohibits contact by a lawyer with another represented party without consent of the other counsel only when the lawyer contacts the other party in the course of representing a client. If A acts as a party in the course of representing a client, A normally may contact C directly. However, A should not be overbearing or harassing and should not act to undermine other counsel.
Opinion:
It is assumed by the inquirer that A does not represent his wife, B, in contacting C, B's ex-spouse. This opinion is based upon that assumption. If it were determined as a matter of law that A did act as lawyer for another party, it would be improper for A to contact C directly without the consent of C's lawyer. See S.C.R. of Prof. Conduct 4.2.
Rule 4.2 prevents a lawyer from communicating without a party about the subject of representation, if the lawyer knows the other party is represented by counsel, without consent of the other lawyer. We have indicated previously that Rule 4.2 generally does not prohibit one party from contacting another party directly, even without the consent of the other party's counsel. S.C. Bar Adv. Op. 90-17 (Sept. 1990). The issue presented by this inquiry is whether the answer differs because a party happens also to be a lawyer.
Rule 4.2 appears to apply only to communications made by a lawyer while representing a client. "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..." Rule 4.2 (emphasis added). The Comment to Rule 4.2 explicitly provides that "parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so." We conclude that Rule 4.2 does not preclude contact by one individual with another represented individual, even though the contacting party is a lawyer, when the contact is not made in the course of representing a client. Moreover, we interpret the Comment to mean that, as a step-father with an interest in the welfare of his step-children, A may have a sufficient "independent justification" for contacting C.
While, as a general rule, a party in A's position, who happens also to be a lawyer, could contact C directly without ethical impropriety, we believe that the range of A's conduct may nevertheless be limited by A's professional status. First, while A may discuss matters with C, A should avoid conduct that might be viewed as overreaching. Second, A should not act in a manner likely to undermine C's relationship with his lawyer, D. Finally, if C directly instructs A not to contact him about the matter, we believe A should not continue to contact C so as to harass him.
The fact that there is no on-going litigation should not affect this conclusion. Rule 4.2 applies regardless of whether there is an on-going formal proceeding. (See Comment, Rule 4.2) On the facts, presented, however, we do not believe that an appropriate attempt by A to contact C directly would violate Rule 4.2.