Bar Counsel Notes: Communication with Person Represented by Counsel

Attorney had obtained a judgment favoring her client, the Plaintiff, in 2009. At that time, the Defendant had counsel. Now, three years later, Attorney has filed for further proceedings against Defendant and despite her multiple calls and three letters to that former opposing counsel to confirm current representation status, she's received no response. Meanwhile, Defendant has filed a pro se Motion to Dismiss in opposition to Attorney's filings. May Attorney now ignore prior counsel and just deal directly and only with Defendant?

Yes, there is no apparent violation of MRPC 4.2 as it seems inapplicable. Specifically, Attorney has no information that Defendant is currently represented by any attorney. In fact, Defendant has made a pro se filing which corroborates the view that he has no current legal representation. See also the Professional Ethics Commission's Advisory Opinion #136.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.