Ethics and Professional Liability – Georgia Bar Rule Case Studies

Part 3 – Communication with a Represented Party

Here is another hypothetical situation from my Attorney Ethics and Professional Liability CLE seminars. We use these case studies to test the audience’s knowledge of both the letter and spirit of the Georgia Bar Rules. Previous articles have covered potential conflicts of interest and threat of criminal prosecution. Part 3 covers another common situation with multiple challenges – communication with a represented party.

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Case Study #3 – Caught in sibling strife. Should this lawyer have contact with the other party?

Family siblings (we’ll identify them as Family A and Family B) in Georgia are squabbling over the guardianship of their mother, who lives in NY. Family A hires a GA lawyer for advice about seeking guardianship over their mother, who they feel lacks capacity to make sound decisions. Family B hires a lawyer in NY, of whom Family A and their lawyer are aware.

Family A contacts the NY lawyer to ask some questions regarding the mother, but the NY lawyer tells them to discuss these issues directly with Family B. In the meantime, Family B moves the mother from NY to their home in GA. Thinking that NY lawyer is no longer representing Family B, Family A and their GA lawyer travel to Family B’s house to discuss the welfare of the mother. On the way, Family A’s lawyer leaves a message for Family B’s NY lawyer attempting to confirm non-representation, but no response is received prior to arriving at Family B’s home. An altercation ensues on the sidewalk in front of Family B’s house, and Family A’s lawyer witnesses the event. Following so far? It gets even better.

Following the altercation, Family A’s lawyer files the guardianship action. Family B hires a GA lawyer who immediately threatens Family A’s lawyer with disqualification and a Bar Complaint. The claim is that the Family A’s lawyer not only contacted clients represented by counsel (Family B’s NY lawyer), but also became a witness to the altercation. Has Family A’s lawyer done anything wrong? Is the lawyer subject to ethical discipline?

You know what happens when you assume…

The primary mistake made by Family A’s lawyer was assuming that Family B was no longer represented by NY counsel. Even though Family A told their GA lawyer that this was an “emergency” situation and the NY lawyer instructed Family A to contact Family B directly, Family A’s lawyer should have done more to confirm the exact status of NY lawyer – more than just leaving a voice mail message. Now Family A’s GA lawyer has several problems which could have otherwise been avoided.

1. Defending the motion for disqualification. There may or may not be a basis for disqualification, although Family A’s lawyer will be forced to spend time and resources responding on behalf of his clients. Depending on their arrangement, Family A may also have to pay the associated fees and expenses to defend the motion, along with any subsequent appeals.
2. Responding to the Bar complaint. A threatened Bar complaint could cause Family A’s lawyer to put his insurance carrier on notice now or at the time of policy renewal. An ethical violation could affect future insurability and result in embarrassing ethical sanctions.
3. Potential conflict. Either the disqualification motion or Bar complaint could lead to a potential conflict between the lawyer and Family A.

Here is what the Georgia Bar Rules say

Three Bar Rules cover this situation:

• Rule 4.2 Communication with Person Represented by Counsel
• Rule 3.7 Lawyer as Witness
• Rule 1.4 Communication

Family A’s lawyer may have committed a disciplinary breach when he contacted Family B without confirming that they were no longer represented by counsel. Family A’s lawyer also saw the altercation, which now makes him a potential witness in the guardianship action. Always be wary of contact with the opposing party, and never assume that your clients (knowingly or unknowingly) are providing complete information.

At this point, we need to question whether Family A’s lawyer can effectively serve the best interests of his client. Family A’s lawyer will at least be distracted with the disqualification and disciplinary proceedings. It could be time to protect the client’s interests, and disengage/withdraw from representation. Withdrawing could nullify the need for the disqualification motion and could limit the chance of receiving a Bar complaint.

Seek independent advice BEFORE you react and respond

How many lawyers do you know, when put on notice like in this example, immediately become defensive and prepare for battle? At who’s expense? Situations like this impact the client as well as the reputation and possibly the future insurability of the lawyer. It’s critical to keep your ego in check and objectively analyze the facts. Get help, either from the State Bar Ethics Hotline or a lawyer with experience handling these types of issues.

Douglas Chandler