There is a maze of ethics rules that regulate, restrict, and prohibit lawyer communications with judges, jurors, witnesses, and parties. This article highlights the communication rules in a question-and-answer format. In some instances, the rule is not clear cut and the answer is the opinion and/or recommendation of the author.
COMMUNICATION WITH OTHER PARTIES
Question No. 1: What is the general rule about a lawyer's communications with a party who is represented by an attorney other than the lawyer doing the communicating?Answer: Supreme Court Rule (SCR) 182 [Model Rule (MR) 4.2] 1 prohibits a lawyer from communicating "about the subject of the representation with a party 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."
Question No. 2: May the other party give the consent in lieu of the consent of his/her attorney?
Answer: No. Under the plain language of the Rule, the consent must come from the attorney representing the party; the consent of the represented party is irrelevant. 2
Question No. 3: Is this Rule limited to communications to a party in a pending lawsuit?
Answer: No. The Rule applies not only to parties to pending litigation and administrative proceedings, but also to represented parties to any pending transaction or negotiation. 3
Question No. 4: May the lawyer communicate with the represented party about other matters?
Answer: Yes. The lawyer may communicate with a represented party about any matter outside the subject of the representation — social or otherwise — as long as another attorney on the subject does not represent the party. 4
Question No. 5: Does the "anti-contact" Rule prohibit one represented party to a transaction from communicating directly with another represented party?
Answer: No, but if the lawyer scripts the content of the communication (as opposed to conferring about the strategy of the communication), rather than letting the content of the communication originate from the client, it may be held to be a prohibited Rule 182 contact. 5
Question No. 6: Is it still a violation by the lawyer if the represented party initiates the communication to the lawyer?
Answer: Yes. The Rule refers to "communicate", not "contact." The lawyer has the obligation to not participate in the communication initiated by a represented party unless and until the party's attorney consents. 6
Question No. 7: May the lawyer communicate with a represented co-party (as opposed to an adverse party) in a lawsuit without the consent of the co-party's attorney?
Answer: No. The prohibition applies to all represented parties, regardless of which "side" they are on in a case. 7
Question No. 8: When does a lawyer "know" that a party is represented by another attorney — so that consent is required?
Answer: There is a split of authority on this question. Some authority says that the lawyer must have actual knowledge of the representation, but that actual knowledge may be inferred from the circumstances; 8 some go so far as to say that the lawyer has no duty to inquire and "knows" does not mean "should have known"; 9 others impose a duty to inquire on the lawyer. 10
Question No. 9: When is a party "represented" for purposes of the anti-contact Rule?
Answer: The lawyer-client relationship must have formally commenced. 11 It would seem that the best practice would be to use the test of whether confidential communications between the attorney and the party in question would be protected by the attorney/client privilege under NRS 49.035-49.115. In the litigation context, a party is "represented" when the party has counsel of record, 12 and the representation must not have terminated. In a non-litigation context, the lawyer may "take the word" of the party that (s)he has discharged his/her lawyer. 13 But in the litigation context, the lawyer cannot take the party for his/her word. As a matter of law, the party's attorney "represents" the party as long as the attorney is counsel of record — even if the party has formally and legally discharged the attorney. 14
Question No. 10: What communications with a represented party are "authorized by law" so that such communications may be made without the consent of the party's attorney?
Answer: One important communication "authorized by law" is communication with governmental officials and employees. 15 The First Amendment's right to petition the government guarantees communication with governmental officials and employees about any controversy. 16
Question No. 11: What if the represented party is an organization, such as a corporation — is the lawyer precluded from contacting all corporate employees?
Answer: No. The lawyer is precluded from communicating only with: (1) officers; (2) managerial employees; and (3) other persons whose statements may constitute an admission on the part of the organization. 17 Thus, if a corporation has general counsel known to the lawyer, the lawyer may still communicate with "low level" employees not in one of the three protected categories. 18
Question No. 12: What if the organization's employee is represented by private counsel different from the organization personally retained by the employee — from whom does the lawyer have to get the consent?
Answer: In that case, only the consent of the employee's private attorney is required. 19
Question No. 13: What about former employees of a represented party who are in a protected category?
Answer: The general rule is that they are no longer protected and the lawyer may communicate with them without the consent of their former employer's attorney — as long as they are not in possession of attorney/client privileged information or work product related to the case or matter. But there is authority to the contrary. 20 For that reason, caution is urged. It will be a sensitive issue with the opposition — particularly if the former employee has "defected" to your side. Prior to communicating with a former employee, the authority on this issue should be updated.
Question No. 14: Is it a prohibited non-consensual communication when a lawyer writes a letter to the represented party directly, with a copy to the party's attorney or, vice versa, a letter to the attorney with a copy to his/her client? For example, if the lawyer suspects the opposing attorney is not (for tactical reasons or because of inattention) sending settlement offers to his/her client, can the lawyer ethically send the settlement offer to the lawyer with a copy to his client?
Answer: No this would be a prohibited communication, because the Rule prohibits all communications — not just ex parte communications. The Rule is violated by any communication without consent, even if it is not ex parte. 21 However, if the lawyer suspects that his/her opponent is not sending settlement offers to the opponent's client, the lawyer may ethically suggest that his/her client ask the other client if (s)he has received the settlement offer. 22
COMMUNICATION WITH WITNESSES
Question No. 15: What is the general rule about a lawyer's communications with non-party witnesses?Answer: The general rule is that non-party witnesses do not "belong" to any party in a case and the lawyer for any party may — with the consent of the witness, but not opposing counsel — interview, and take a statement from, the witnesses ex parte at any time. 23
Question No. 16: What limitations are there to the general rule of open access to non-party witnesses?
Answer: There are several categories of exceptions that derive from SCR 173 (MR 3.4):
1. During the communication, the lawyer may not counsel or assist the witness to testify falsely; 24
2. During the communication, the lawyer may not offer an inducement to a witness that is prohibited by law; 25
3. During the communication, the lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(a) The person is a relative or an employee or other agent of a client; and
(b) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. 26
Question No. 17: Does it violate the Rule against "offering an inducement" to offer or pay a witness: travel, hotel, food expenses, or compensation for loss of wages, while coming to trial to testify?
Answer: No, this does not violate the Rule, as long as the expenses are actual and reasonable, and not a fee for telling the truth. The duty to tell the truth while testifying is imposed on all witnesses by law. 27 Reimbursement for expenses and lost wages may be paid not only to expert witnesses, but also to non-expert, i.e. "fact," witnesses. 28
Question No. 18: May a fee be paid to a witness for his/her testimony?
Answer: No, if the witness is a non-expert, "fact" witness; "yes", if the witness is an expert witness. 29
Question No. 19: Are there any limitations on the fee that may be paid to an expert witness?
Answer: The expert witness fee must be reasonable (as opposed to so unreasonably high that the lawyer is buying false testimony rather than an honestly held expert opinion) and may not be contingent on the outcome of the case. 30
Question No. 20: Are there any other Rule-derived limitations on the lawyer's communications with non-party witnesses?
Answer: Yes. SCR 183 (MR 4.3) provides that, "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."
Question No. 21: May a lawyer make ex parte communication with another party's expert witness?
Answer: No. This has been held to violate SCR 173(3) (MR 3.4) to, "Knowingly disobey an obligation under the rules of a tribunal. . ." since NRCP 26(b)(4) strictly limits and controls discovery from the opposing party's expert witnesses. 31
COMMUNICATION WITH JUDGES
Question No. 22: What is the general rule about a lawyer's communication with the judge in the case?Answer: Supreme Court Rule (SCR) 174 [Model Rule (MR) 3.5] provides that a lawyer shall not communicate ex parte with a judge except as permitted by law.
Question No. 23: What if there is no opposing counsel because the matter is uncontested?
Answer: In that instance, the communication cannot be "ex parte" and is allowed.
Question No. 24: Is a written communication "ex parte" if opposing counsel is copied with it? In other words, is communication with the judge improper per se, or is it improper only because it is without the knowledge of opposing counsel?
Answer: A written communication is not "ex parte" — and, thus, not a violation of the Rule — if a copy is sent to opposing counsel at the same time by the same means of delivery. Conversely, it is an improper ex parte communication to fax or e-mail a judge and simultaneously send a copy to opposing counsel by regular mail. 32
Question No. 25: What communications are "permitted by law?"
Answer: Such communications include communications that do not deal with substantive matters or the merits of the case, including for scheduling, administrative purposes, emergencies, TRO applications, and communications that are unrelated to any matter pending before the judge, such as social communications. 33
Question No. 26: Is it a violation of the "ex parte" communication rule if the judge initiates the communication with the lawyer?
Answer: Yes. The lawyer has the obligation to not participate in the communication unless and until opposing counsel is present or a co-participant. 34
Question No. 27: Is it a prohibited ex parte communication to present a written submission to a judge without simultaneously furnishing it to opposing counsel?
Answer: Yes. The classic violation would be for the prevailing party in a motion or trial to present proposed findings and conclusions and decision to the judge without simultaneously presenting the proposed order to opposing counsel. 35
Question No. 28: Who is a "judge" for purposes of the Rule?
Answer: Everyone that is in a position to make a decision in the form of findings of fact and conclusions of law affecting the lawyer's client, including administrative law judges, hearing officers 36 — and others who are in a position to influence that decision, such as a judge's law clerk. 37
COMMUNICATION WITH JURORS
Question No. 29: What is the general rule about a lawyer's communications with jurors?Answer: The same SCR 174 also provides that a lawyer shall not communicate ex parte with a juror or prospective juror except as permitted by law.
Question No. 30: Does this apply to grand jurors?
Answer: Yes, it applies equally to both petit and grand jurors. 38
Question No. 31: May a lawyer contact, or employ an investigator to contact, a person on the panel of prospective jurors once the parties are given the panel names, but before the case starts and the panel reports to court?
Answer: No, the SCR 174 expressly applies to "prospective" jurors.
Question No. 32: Are there any circumstances justifying ex parte communication with a juror sitting on a case while the trial is pending?
Answer: No. 39
Question No. 33: What about after the trial is over and the jury has been released?
Answer: This is allowed when permitted by law. "Permitted by law" has been interpreted to mean that post-trial communication with discharged jurors is permitted, except when statute, local court rule, or an order from the judge presiding in the case prohibits it.
ENDNOTES
1 The Model Rules are the ABA Model Rules of Professional Conduct, from which the Nevada Rules of Professional Conduct contained in the SCR were borrowed — verbatim in most cases.
2 Wolfram, Modern Legal Ethics, West (1986), at p. 614; Faison v. Thornton, 863 F.Supp. 1204 (D.C. Nev. 1993).
3Comment 3 to MR 4.2.
4 Comment 1 to MR 4.2.
5 Comment 1 to MR 4.2; Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 392.
6 Cronin v. Eighth Judicial District Court, 105 Nev. 635, 781 P.2d 1150 (1989). This is a corollary of the rule that the party cannot give the consent.
7 Wolfram, Modern Legal Ethics, West (1986), at p. 611.
8 Comment 5 to MR 4.2.
9 ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95-396 (1995); FSLIC v. Hiddenbrand, 1989 WL 107377 (D.C. Colo. 1989).
10 Monsanto v. Aetna, 593 A2d 1013 (Del. 1990); Upjohn v. Aetna, 768 F.Supp. 1186 (D.C. Mich. 1990).
11 Conduct, 3rd Edition, American Bar Association (1996), at p. 400.
12 Faison v. Thornton, 863 F.Supp. 1204 (D.C. Nev. 1993).
13 Although a safer course would certainly be to check with the "discharged" lawyer rather than taking the word of the party.
14 Faison v. Thornton, 863 F.Supp. 1204 (D.C. Nev. 1993).
15 Faison v. Thornton, 863 F.Supp. 1204 (D.C. Nev. 1993).
16 Comment 1 to MR 4.2. However, it is foreseeable that an abuse of this right — such as non-consensual communication with a governmental party's officer or employee who possesses "work product" information — will be challenged by the governmental party. Prior to communicating with a former employee the authority on this issue should be updated.
17 Comment 4 to MR 4.2; Cronin v. Eighth Judicial District Court, 105 Nev. 635, 781 P.2d 1150 (1989).
18 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 394; ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95-396 (1995).
19 Comment 4 to MR 4.2.
20 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 396.
21 In re Hedrick, 822 P.2d 1187 (Ore 1991); In re Shane, 553 S.W.2d 467 (Ky. 1977); ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 75-1348 (1975).
22 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 402; ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 92-362 (1992).
23 Wolfram, Modern Legal Ethics, West (1986), at p. 647.
24 SCR 173(2).
25 SCR 173(2).
26 SCR 173(6).
27 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 329.
28 Comment 3 to MR 3.4.
29 Comment 3 to MR 3.4; Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 330.
30 Comment 3 to MR 3.4; Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 330.
31 Erickson v. Newmar, 87 F.3d 298 (9th Cir. 1996).
32 In the Matter of Marek, 609 N.E.2d 419 (Ind. 1993); Cormier v. Carty, 408 N.E.2d 860 (Mass. 1980).
33 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 337.
34 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 338.
35 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 339.
36 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 339.
37 Briseno v. Superior Court, 284 Cal. Rptr. 640, 233 Cal.App.3d 607 (1991); Brown v. Brown, 457 S.E.2d 215 (Ga 1995).
38 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 341.
39 Annotated Model Rules of Professional Conduct, 3rd Edition, American Bar Association (1996), at p. 342.