|
RE: Advisory
Opinion 94-01
Arkansas Bar Association
DATE: April
14, 1994
SUBJECT:
Communication with Adverse Party
Your
request for an advisory opinion sets forth the following
facts: Pursuant to federal bankruptcy law, the Attorney
General appoints a United States Trustee for the State
of Arkansas, who in turn establishes and supervises
a panel of private trustees who serve in selected
Chapter 7 proceedings. Although not required, the
trustees on the panel are typically practicing attorneys
experienced in bankruptcy matters. The trustee who
is appointed frequently hires, with court approval,
attorneys who represent or assist the trustee in carrying
out the duties assigned to the
trustee. Upon behalf of the trustee, the attorney
may commence proceedings against an adverse party.
Your
question is whether the attorney for the adverse party
may communicate directly with the trustee concerning
the litigation and settlement of the contested matter,
without the knowledge and consent of the lawyer who
represents the trustee. The committee's answer to
that question is no.
Our
analysis begins with Rule 4.2 of the Arkansas Rules
of Professional Conduct, which have governed Arkansas
attorneys since January 1, 1986. The rule states:
"In representing a client, a lawyer shall not
communicate 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."
The
purpose of this rule is to prevent an attorney from
bypassing the opposing attorney and obtaining, directly
from the opposing party, a concession, an admission
or a settlement. The provision applies to all forms
and types of judicial proceedings and legal representation.
To prevent overreaching and to avoid interference
in the trust and confidence placed by the client in
the attorney, such direct contact is universally prohibited.
Wolfram, Modern Legal Ethics (1986) 612.
Although
the trustees are usually attorneys themselves, in
proceedings where they have elected to, or are required
to, employ counsel, they have in effect become the
client. The trustee is
entitled to the same protection as any other client,
the protection provided by retained counsel.
Accordingly,
the attorney for the adverse party should not communicate
directly with the trustee. Such communication raises
the risk of settlement or other resolution without
the guidance of counsel. See Virginia Legal Ethics
Opinion 1431 (1991) .Conversely, the trustee should
not initiate direct communications with the attorney
for the adverse party. The trustee has delegated such
communications to the retained attorney.
However,
it should be noted that Rule 4.2 does not prohibit
direct communications between adverse parties. See
Comment to Rule 4.2; Hazard, The Law of Lawyering
(2nd ed. 1993) 732. See California State Bar Formal
Opinion 1989-110 (bankruptcy trustee, acting as a
party, is permitted to communicate directly with other
parties).
An obvious alternative
is available: upon retaining an attorney for a particular
matter, the trustee may alter the traditional terms
of the attorney-client relationship. The trustee may
notify its attorney that it retains the power to communicate
directly with, and to receive communications directly
from, the attorney for the adverse party. The resolution
of that request falls within the general rubric of
the law of contract and the attorney-client relationship.
The Rules of Professional Conduct, see Rule 1.2 in
particular, anticipate such modification in the
normal relationship.
Such
a modification of Rule 4.2 to allow direct communications
between the trustee as client and the attorney for
the adverse party, regardless of the wisdom of such
an agreement, is not
contrary to any express policy of the Rules. In contrast,
some agreements are so contrary to the Rules as to
be expressly forbidden regardless of the consent of
the parties. See Rule 5.6, Rule 1.5 (d).
The
attorney for the adverse party may inquire of the
attorney for the trustee whether the trustee has consented
to direct communications and has in effect waived
the protection of Rule 4.2. The attorney for the adverse
party should obtain written consent from the attorney
before communicating directly with the trustee.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of attorneys licensed
to practice in the Sate of Arkansas, and reliance
thereon is voluntary and relieves
any Association member from liability for the content
hereof. This opinion is intended to be the Association's
best interpretation of the Model Rules of Professional
Conduct as promulgated by the
Supreme Court of Arkansas as that code applies to
the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By:_______________________________
Howard W. Brill
Reporter for Professional
Ethics
and Grievances
Committee
|
