Whether lawyers have ethics is, as everyone knows, a source of jokes. The reason is that the ethics of the practice of law are built around different policies and objectives than what “doing the right thing” might suggest. A good example is a rule designed to insulate clients from having their lawyer cut out of the loop in their cases.
There is an ethical rule in every state prohibiting lawyers from communicating about a legal matter with people they know have lawyers on that matter. That means that if you tell a lawyer that you need to consult a lawyer about the matter you are being asked about, the lawyer will often break off the conversation immediately and ask for your lawyer’s name or otherwise confirm that you don’t yet have a lawyer. A careful lawyer will not only break off matters, but probably won’t start up again until he or she is absolutely certain that you don’t have a lawyer.
Cynics might say that this rule protects lawyers’ fees. The real reason is to ensure that people who have lawyers get the benefit of having lawyers and that they aren’t taken advantage of by their opponents’ lawyers. Imagine the dynamics, for example, of a defense lawyer being called away from a criminal interrogation and the prosecutor continuing to question the suspect while the defense lawyer is out.
Oregon is particularly touchy about this rule; it applies to lawyers’ own legal matters in addition to their clients’, and the lawyer’s state of mind, other than confirming knowledge that the other person has a lawyer, has no bearing on whether the rule is violated. I have had to contact lawyers for permission to speak with relatives about legal matters that they wanted me to have a role in.
There are three exceptions to the rule, one of which is not recognized in all states. First, it is possible to get permission from the other lawyer to speak to his or her client. The client’s approval is not enough; otherwise, the rule could be avoided to easily. This means that a client can discuss matters with their lawyer and the client and lawyer can decide whether to approve direct contact.
Second, if a lawyer is required by law or a court order to communicate directly, that requirement can be complied with. The most common application of this exception is service of papers at the beginning of a lawsuit. Although lawyers can agree to accept service for their clients, they don’t always do this, and the law usually requires the client receive the papers if there is no agreement. Most lawyers also will send copies to the other lawyer. If it’s not obvious what law authorizes the communication, I usually tell the other lawyer what law I’m relying on.
Third, in Oregon, when a written contract specifies that notices from one party to the other are to be delivered to a specific person, a lawyer may send the notice as directed, but a copy has to be sent to the other lawyer as well.
I often have difficulty convincing people how serious the rule against contacting people with lawyers is. It runs contrary to the idea of making things easy and coming to quick resolutions, but that’s because the idea is to make sure that the resolution is fair. I have offended people by telling them that I have to break off, and only later been able to speak to their lawyer to explain why.
If you are contacted by a lawyer on a matter that you already have a lawyer for, you can protect yourself by telling the lawyer to call your lawyer. If you want to talk to your lawyer about it, don’t agree to anything with the other lawyer, and don’t give out information that you don’t want the other lawyer to have. If you do want to talk to the other lawyer, report the conversation to your lawyer afterward so that he or she isn’t surprised. And sometimes you may decide that you don’t need the rule’s protection. If you know at the beginning of the case that you will want to speak to someone else’s lawyer, talk to your lawyer first to arrange having your lawyer send a letter approving the contact (and possibly setting limits).