October 1, 1992
A lawyer having knowledge that another lawyer has negotiated a settlement directly with a party represented by counsel but without the consent of the party's counsel or as otherwise authorized by law, is required to inform the Attorney Grievance Commission about the matter.
References: MRPC 1.7, 4.2, 4.3, 8.3(a); RI-101.
A lawyer who had been friendly with a married couple for several years was subsequently asked to represent one of the spouses in a divorce proceeding. After several offers of property settlement were rejected by the parties through their counsel, the lawyer advised opposing counsel that a property settlement agreement had been reached and that the signature of opposing counsel on the documents was necessary. In questioning how the settlement could have been reached without the participation of opposing counsel, opposing counsel was told that the opposing party purportedly contacted the lawyer directly several times, without knowledge or consent of the opposing party's counsel, to discuss the divorce. Although the lawyer allegedly advised the opposing party that there should be no direct conversation between them without consent of the party's counsel, the opposing party purportedly indicated that this right was being waived. The lawyer assisted in the negotiation of a property settlement between the parties without the presence, consent or knowledge of the opposing party's counsel.
Upon discovery of the unauthorized negotiation, the opposing lawyer refused to sign the settlement and withdrew from the representation with the client's consent. The opposing lawyer asks whether there is a duty to report the unauthorized contacts to the Attorney Grievance Commission.
The first issue is whether unauthorized contacts violate MRPC 4.2 by communicating with a person represented by counsel. There can be little doubt that such a communication transgresses MRPC 4.2 which 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."
The purpose of the restriction on communications with parties represented by counsel is to "prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact," Wright v Group Health Hospital, 691 P2d 564 (Wash 1984); in accord, Frey v Department of Health and Human Services, 106 FRD 32 (DC ENY 1985). The rule explicitly states that the consent of the party's lawyer is required, not consent of the party. There is no opportunity to provide adequate counseling to the client regarding direct communications if the client's lawyer is not aware of the contact. The opposing counsel is prohibited from providing even minimal counsel regarding the contact by both MRPC 4.3 and 1.7.
The second issue is whether there is a duty to report the conduct pursuant to MRPC 8.3(a), which states:
"A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission."
Whether the inquirer has a duty to report the conduct under MRPC 8.3(a) is in part concerned with whether the apparent violation is significant, but is also concerned with whether the lawyer being complained of may be in a position to effectively cover up the misconduct.
In RI-101 we addressed a lawyer's duty to report the unauthorized practice of law of a disciplined lawyer, saying:
"The comments to MRPC 1.0 define 'substantial' to mean a 'material matter of clear and weighty importance.' Thus, substantial refers to the seriousness of the possible offense. The purpose of lawyer discipline is for the protection of the public, the courts and the legal profession, MCR 9.105. It is the duty of lawyers to conduct themselves at all times in conformity with standards imposed on members of the bar as a condition of the privilege to practice law, MCR 9.103."
It seems obvious that the party in this inquiry could have been put at a serious disadvantage as a result of the unauthorized contact. On its face, this appears to be a "material matter of clear and weighty importance." The lawyer admitted to more than one such contact, and never advised opposing counsel that such contacts were taking place. When confronted with the problem, the lawyer tried to rely upon the purported "consent" of the party. The lawyer also attempted to have the conduct exonerated by seeking the opposing counsel's signature on the settlement agreement in which the opposing counsel did not participate. Taken as a whole, the ethical violation of the lawyer was "significant" and triggers the duty to report under MRPC 8.3(a).
The Comment to MRPC 8.3 states in part:
"This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule. The term 'substantial' refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware."
It is clear that the Attorney Grievance Commission is in a much better position, given the tools it has available to it, to judge the circumstance of the unauthorized contact and to gather evidence as it deems appropriate. The difficulty of proof should not be confused with the duty to report.