January 30, 1989
A lawyer may accept employment from persons properly contacted pursuant to court order who have claims similar to that described in the lawyer's communication.
References: MRPC 4.1, 4.2, 4.3, 7.1.
A lawyer brought suit against defendant corporation in separate counties seeking a determination as to whether defendant corporation discriminated against the lawyer's clients. In order to obtain admissible evidence relating to the defendant corporation's practices, the lawyer filed a motion to compel discovery of the names and addresses of former employees of defendant corporation. The motion was granted in a stipulated order signed by the judge.
The lawyer sent letters to the former employees which accurately described a pending case and the lawyer's role in the case, pursuant to MRPC 7.1. The communication to the former employee stated in part:
"If you have retained an attorney to represent you in connection with your termination from [defendant corporation], please pass this letter on to him or her. We likely have information that will be helpful and vice versa. If you have information we ask that you call us at [phone] . . . ."
The lawyer asks whether the lawyer can accept as new clients those former employees who respond to the letter and ask for representation.
MRPC 4.2 states:
"In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Emphasis added.
Although MRPC 4.2 prohibits a lawyer from communicating with employees of an opposing party corporation in some circumstances, the lawyer's communication to the employees in this instance was specifically authorized by the court. Therefore, the contact may be made pursuant to MRPC 4.3, which states:
"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.
Under MRPC 7.1, a communication about the lawyer's services must not be false, fraudulent, deceptive, or misleading, given unreasonable expectations as to the result that can be obtained, or compare lawyer's services. When contacting someone not known to be represented, the contact must be made pursuant to MRPC 4.1 and 4.3.
If the communication complies with those guidelines, then should a recipient telephone a lawyer with information as suggested in the letter, and then by phone ask the lawyer to represent the client, the lawyer may accept the representation as long as it does not conflict with the lawyer's duties to current or former clients, MRPC 1.7 and 1.9, and if all other ethical rules are followed. Similarly, if the recipient of the letter contacts the lawyer and makes arrangements to meet with the lawyer in person, and after providing the lawyer with information the lawyer requested about the current case, subsequently asks the lawyer to institute a similar case on the recipient's behalf, the lawyer is not prohibited from undertaking that representation.