Unauthorized Ex Parte Contacts with a Represented "Party"
Chance to comment on recent interpretation by State Bar Court Review Department

LACBA Update, September 2005

By Roderick W. Leonard, in private practice, is a member and former chair of LACBA's Professional Responsibility and Ethics Committee, and a past member and former chair of the State Bar's Committee on Professional Responsibility and Conduct. The opinions expressed are his own.

The Review Department of the State Bar of California Court recently affirmed discipline for an attorney who spoke to a represented witness without his attorneys' consent. The disciplined attorney won the battle of ex parte contacts but lost the discipline war. The Review Department opinion, in Matter of Dale (2005) 2005 DJDAR 5350, provides a narrow interpretation of "party" for purposes of discipline under Rule 2-100 of the California Rules of Professional Conduct. Equally or more importantly, the "party"/"person" issue of the proposed ex parte contact rule is under consideration by the State Bar Commission for Revision of the Rules of Professional Conduct.

Rule 2-100(a) provides:

While representing a client, a member [of the State Bar of California] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

The accused attorney (respondent) represented tenants in a negligence action against an apartment owner where the matter arose from an arson fire. "G" had previously confessed to the police about setting the fire, and the voluntariness of that confession was the key upon which G was appealing his second degree murder conviction. An occupant of the burned apartment building died in the fire, several others were injured, and many suffered property damage.

Respondent was facing a summary judgment motion by the civil defendant apartment owner and needed G's statement about the condition of the premises at the time he was alleged to have set the fire. Both G's trial counsel and G's appellate counsel refused respondent's requests to contact their client. Nevertheless, the Review Department opinion states that "respondent intentionally used his status as an attorney to gain access to [G] while he was in jail and meet with him in private" and obtain G's "incriminating declaration."

The State Bar Court hearing judge found respondent culpable of violating Rule 2-100 by improperly communicating with a represented party, culpable of committing acts of moral turpitude in violation of Business and Professions Code Sec. 6106, and breaching the "fiduciary duty owed to a non-client" in violation of Business and Professions Code Sec. 6068(a).

The hearing judge recommended four months actual suspension. The Review Department opinion modified the hearing judge's culpability determination by finding no culpability under Rule 2-100. It left intact the culpability of the two Business and Professions Code sections, and the proposed discipline remained the same. The opinion detailed the facts of the unauthorized contacts and stated that respondent "compromised the integrity of the justice system when he befriended and then cajoled G ... into giving a confession."

Analyzing application of the rule to the facts, the opinion found "scant authority in the drafting history of rule 2-100," it discussed case authorities that have considered the rule, and it applied rules of statutory construction to construe the rule narrowly. G was not a party to the civil lawsuit. Respondent was found not to be a "party" under Rule 2-100 for his unconsented communications with G. The opinion states, "[W]e defer to the Board of Governors and the Supreme Court for any curative efforts should they determine that the purpose of rule 2-100 is ill-served by its present language."

The Review Department opinion points out that 27 states use the term "party" in their analogous rules to 2-100. Of those 27, 18 states provide commentary to clarify that their rule covers any person whether or not a party to a formal proceeding. Further, 22 states use the word "person" in their analogous rule and intend the rule to prohibit communications with any person who is represented by counsel, whether or not a party in a proceeding. The American Bar Association Model Rule 4.2 uses the word "person."

The State Bar Commission's presently proposed modification of Rule 2-100 follows the ABA model rule and many jurisdictions by substituting the word "person" for "party." However, it would seem that the term "person" applies the prohibition of unconsented ex parte contacts about the "subject of the representation" to both the litigation and nonlitigation contexts unless permitted by a stated exception. In other words, if the proposal is adopted, contacts with all represented individuals, whether or not they are parties in the matter in which the contacting attorney is involved, are prohibited unless covered by an exception.

Those interested in expressing a viewpoint on this rule or any other California Rule of Professional Conduct can send comments to the Commission through Audrey Hollins at audrey.hollins@calsb.org.