Attorneys are generally aware that they are prohibited from directly or indirectly contacting an opposing party that is represented by counsel without that counsel’s consent.  This prohibition is found in California Rule 2-100 of the Rules of Professional Conduct (“Rule 2-100”), which requires the consent of the opposing counsel before an attorney can communicate with a represented party.

There are limited exceptions, including contacting public officials.  Interpreting Rule 2-100 with today’s  various means of communication, can create uncertainty.  Take the situation in which a complex transactional matter is being negotiated among the various parties and their respective counsels.  It is not uncommon for documents, comments on documents and responses to such comments to be distributed to all parties listed on a transactional distribution list; a list which includes all of the parties and their respective counsels.  Do these types of actions violate Rule 2-100? The strict reading of the rule would dictate yes, because attorneys are communicating with represented parties and their counsels, without such counsels’ consent.  But, wait a minute.  What if this is the way that transactions of this nature are routinely conducted.  Can prior course of action provide implied consent?

Course of conduct among the parties has been found to provide implied consent.  This may be  particularly the case when the party’s counsel is in a position to object at the beginning of the transaction.  There is nothing in the Rule 2-100 which prevents parties from talking directly to one another.  However, an attorney must be cautioned as to not coach the client to communicate on her behalf to the other party to get around the rule.

The primary objective of Rule 2-100 is to “shield the opposing party not only from an attorney’s approaches which are not intentionally improper, but, in addition, from approaches which are well intended but misguided.  The rule was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such rules.” (COPRAC Opinion 2011-181 citing (Ables v. State Bar (1973) 9 Cal.3d 603,609 [108 Cal.Rptr. 359].)

In the example above, the attorneys could, at the beginning of the transaction, agree that documents, comments and responses to comments can be sent to all members on the distribution list.  This would solve the problem.  An attorney could always deny her consent to communicating in this fashion.  Implied consent can be found through the particular circumstances.  Attendance at a meeting by the attorneys and their clients would probably constitute implied consent.  The policy of the rule in this case still would be met because the attorneys could prevent any improper communication, if necessary.

Implied consent may also be found in communicating directly with opposing counsel by email and copying a client on the email.  Does this email invite the opposing counsel to hit “reply all” and communicate directly with the client?  It might.  It may be advisable to send a separate email to the client.  The practical solution is to obtain consent at the beginning of the transaction.

About the author:

Dianne Jackson McLean is a partner at Goldfarb & Lipman, where she is a transactional attorney, and represents former redevelopment agencies, public housing authorities and other public agencies in major economic development projects and housing developments.