This month’s blog discusses the recent ABA Formal Opinion 472 offering guidance on dealing with unrepresented persons who appear to be receiving assistance from counsel.
ABA Formal Opinion 472, issued November 30, 2015, offers guidance to an attorney who is dealing with a person who claims to be unrepresented, but appearances suggest a lawyer’s involvement. The opinion applies Rule 4.2 (Communication with Person Represented by Counsel) and Rule 4.3 (Dealing With Unrepresented Person). Unfortunately, the opinion has two problems.
The more important problem is that the opinion infers actual knowledge that a person is represented from mere appearances. This problem is important because the word “know,” and its derivatives, are frequently used in the Rules of Professional Conduct. Whether an attorney actually knows, or merely believes, or just suspects, is often crucial to determining what ethical obligation the lawyer may have. The second problem arises from citation to Rule 1.6 (the confidentiality rule) as a basis for recommending that an attorney who communicates with a formerly represented person should not inquire as to privileged or confidential matters.
I. Suppose that an attorney, Able, represents a criminal defendant, Doe. Able calls Roe as a witness. Roe testifies that he prepared an important document without the assistance of a licensed lawyer. The document appears, however, to reflect legal training, which Roe does not have.
Rule 3.3(a) forbids a lawyer to “offer evidence that the lawyer knows to be false.” The rule also requires the lawyer to take remedial measures, usually including disclosure, if a client, or a witness called by the lawyer, gives testimony the lawyer knows to be false.
“Knowledge” is defined as “actual knowledge,” but “knowledge may be inferred from circumstances.” Rule 1.0(g). May we infer that Able actually knows that Roe’s testimony is false?
The answer is – I think obviously – “no.” Even if it is highly probable that Roe did not prepare the document without aid, Roe might have had such aid from a source other than a lawyer. The source might be documentary - the internet , or a formbook, or another document, edited. Or Roe’s helper might have been someone with legal knowledge, but without a law license – a law student or graduate without a license, a paralegal or secretary, a jailhouse lawyer, etc.
ABA Op. 472 appears, however, to answer “yes, knowledge may and must be inferred from appearances.” The opinion addresses a scenario arising under Rule 4.2, prohibiting communication with persons an attorney knows to be represented. Op. 472 applies the knowledge factors of Rule 1.0(g) to the scenario in a way that could also be applied to the criminal testimony scenario, under Rule 3.3. The key statements of Op. 472 are:
“In circumstances involving what appears to be an unrepresented person, but in fact may be a person represented by a lawyer under a limited-scope agreement, a lawyer's knowledge that the person has obtained some degree of legal representation may be inferred from the facts. Such circumstances include, for example: when a lawyer representing a client faces what appears to be a pro se opposing party who has filed a pleading that appears to have been prepared by a lawyer or when a lawyer representing a client in a transaction is negotiating an agreement with what appears to be a pro se person who presents an agreement or a counteroffer that appears to have been prepared by a lawyer.”
Emphases added. “May be inferred” indicates, it appears, that on the facts posited, the attorney has actual knowledge that the ostensibly unrepresented person is or was represented by a lawyer. But Rule 4.2 does not apply unless the attorney is dealing “with a person the lawyer knows to be represented….” Even if it is inferred that the drafting was by a lawyer, the attorney does not know that the lawyer is now representing the person with whom the attorney wishes to communicate. In short, Rule 4.2 does not apply.
An old adage is, “Appearances can be deceiving.” Dictionary definitions of “appear” include, “seem to be,” “look to be,” and “give the impression of being.” How has Op. 472 leapt from appearance to knowledge?
The opinion cites a comment, stating that the requirements of Rule 4.2 cannot be evaded “by closing eyes to the obvious.” But the opinion does not explain why it is “obvious,” merely from the documents’ appearances, that a lawyer drafted them. Deliberately closing one’s eyes to the obvious is not the same as declining to draw an inference from what “appears.” In ordinary English, there is a clear difference between saying “it appears” and “it is obvious that.”
Well-known criminal defense attorney Earl Gray once regaled a CLE audience with the story of a defendant who insisted on testifying to a most improbable story. The defendant was charged with possession of drugs with intent to distribute. He was caught with drugs, cash, scales, and a meticulous note book, with columns by date, ounces and dollars. The per-ounce prices were very high. The defendant testified that the evidence reflected his sales of especially delicious jerk chicken. Appearances to the contrary notwithstanding, no one in the audience voiced the opinion that Gray could, by inference, be deemed to know the testimony was false, and therefore be required to disclose the falsehood or otherwise remediate.
Having found that an attorney actually knows the documents were drafted by a lawyer, the opinion shifts gears. Rather than concluding that the attorney therefore must attempt to contact the lawyer-drafter, for consent to communicate with the ostensibly pro se person, the opinion “recommends that, in the circumstances where it appears that a person on the opposing side has received limited-scope legal services, the lawyer begin the communication by asking whether the person is represented by counsel. . . ..” A recommendation, rather than an obligation, is given, apparently because the attorney does not know whether the representation of the ostensibly represented person has been concluded.
Some states have found a better way to address the issues raised in Op. 472. A comment to Illinois Rule 4.2 provides that the inquiring attorney is not deemed to know that a person with limited representation is in fact represented unless the lawyer providing limited representation gives written notice. Washington has similar comments to Rules 4.2 and 4.3.
II. Formal Opinion 472 concludes with a recommendation that purports to be anchored in Rule 1.6, but has no such mooring. This recommendation is that an attorney dealing with a formerly represented person should not inquire as to the persons communications with the former lawyer, “We note that Rule 1.6 and the confidentiality of communications between a lawyer and the lawyer’s client does not end when the limited-representation concludes. Therefore, any communication with a person who received limited-scope legal services about an issue for which representation has concluded should not include inquiries about communications between the person and the lawyer providing limited-scope services.” Emphases added.
Why “therefore?” Why not inquire? Applications of several legal principles are needed for answers.
First, Rule 1.6 has nothing to do with the situation. Rule 1.6 requires the former lawyer to keep certain information confidential. Rule 1.6 does not apply to the attorney who is dealing with a formerly represented person. The “therefore” in Op. 472 indicates the recommendation follows from the citation to Rule 1.6, but in fact nothing follows that is relevant to the attorney for the other party.
If Rule 1.6 did, somehow, apply, it would lead to absurd consequences. The former lawyer may not reveal any “information relating to the representation,” unless a specific exception applies. Rule 1.6(a), (b). But if the attorney should not inquire as to all information relating to the representation, the field of advisable inquiry may be very small and very unhelpful to the current client.
Second, an attorney representing interests adverse to an unrepresented person must inform that person of the adversity. Rule 4.3(b). Having disclosed the adversity, however, the attorney may proceed to take adverse action.
Third, a lawyer may not “use means of obtaining evidence that violate the legal rights” of another person. Rule 4.4(a). For example, a lawyer may not obtain a corporation’s privileged documents from a low-level employee, because the employee does not have the right to waive the privilege. Here, however, the source of the information and the holder of the rights are the same person. A formerly represented person has a right to assert the attorney-client privilege as to certain information. The same person also has the right to waive the privilege, in a testimonial setting, and in a non-testimonial setting, may decline to disclose privileged or other information.
Asking a formerly represented person for information that is protected by privilege or work product does not infringe any right. Should an attorney make such an inquiry? As noted, Rule 1.6 - the only source offered for recommendation by Op. 472 - provides no basis. Some inquiries could produce information that was helpful to the attorney’s client without the disclosure being harmful to the privilege holder. Some attorneys would think that digging into a formerly represented person’s privileged information would, in most or many circumstances, violate standards of professionalism. The answer appears to be, “It depends.”
If the ABA thought that persons whose actions give some appearance of being represented by an unknown lawyer needed more protection than is provided by current Rules 4.2 and 4.3, the ABA should have followed the lead of states like Illinois and Washington, by adopting new comments, or rule amendments. Op. 472’s attempts to solve problems by asserting that knowledge can be inferred from mere appearance and that Rule 1.6 imposes confidentiality obligations on an opposing attorney create problems, rather than solve them.