Bar Counsel Notes: Communications with Person Represented by Counsel

Attorney represents W in a Family Matters case. Without Attorney's knowledge or assent, W hired a PI to check to see if H is drinking. PI takes videos of H drinking and then talks with H and receives an admission of H's recent and current drinking habits. H has an attorney. Upon learning of this admission, would Attorney violate the MRPC if he allows PI to have any future conversations with H?

MRPC 4.2 appears to not yet have been violated by Attorney because he had no involvement or knowledge of PI's discussion with H until after it took place. As to PI's future contacts with H, unlike former M. Bar R. 3.6(f), an attorney's "indirect" contact with a represented party is not specifically prohibited by the language of M. R. Prof. Conduct 4.2(a). But M. R. Prof. Conduct Rule 8.4(a) [Comment 1] is relevant. That RuIe states that it is professional misconduct for an attorney to "attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another." As a result, based upon his current knowledge of PI's prior discussion with H, Attorney should not let PI contact or speak again with H. With that current knowledge, if he now has any involvement with such contacts by PI, Attorney would potentially violate Rules 4.2(a) and 8.4(a).

*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.