Rules of Professional Conduct Related Ethical Opinions

4.2  Communication with Person Represented by Counsel


06-03: Limited Scope Representation; Confidentiality; Coaching; Ghost Writing

An attorney who limits the scope of representation and coaches the client or ghost writes papers must direct the client to be truthful and candid in the client’s activities.  While an attorney is not required to disclose to opposing counsel that the attorney is providing limited-scope representation, the attorney must maintain client confidentiality if doing so.

04-03: Client Funds and Property; Liens; Collection of Legal Fees; Missing Clients; Creditors of Client

An attorney cannot, without the consent of his former client, ethically disburse to himself funds from a former client's share of funds in the attorney's possession, where the former client owes the attorney unpaid fees, but the funds in the attorney's possession are unrelated to the representation of the former client. If the attorney is unable to locate the former client to obtain her consent, the attorney should commence an interpleader action.

03-02: Communication with Represented Persons; Bankruptcy Trustee/Ex Parte contact

A lawyer serving as trustee in bankruptcy may directly contact parties in bankruptcy cases who are represented by counsel. The lawyer acting as both the trustee and attorney for the trustee may not have ex parte contact, unless authorized by law to do so.

02-02: Communication with Adverse Parties

Unless an administrative rule or statute requires such contact, a lawyer should not send copies of documents to a represented opposing party without opposing counsel’s consent, even if copies are sent contemporaneously to opposing counsel.

00-05: Communication with Corporate Employees; Communication with Represented Parties; Ex Parte Communications; Communication with Witnesses

A lawyer may interview ex parte a client's employee concerning litigation with the employee's former employer, subject to the limits recognized in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). In interviewing an employee in these circumstances, the lawyer must also comply with other applicable ethical rules in addition to ER 4.2, particularly ERs 4.3 and 4.4. [ERs 4.2, 4.3, 4.4]

99-07: Unauthorized Practice of Law; Communication with Unrepresented Party; Nonlawyers; Insurance Representation (W/DISSENT)

Lawyers ethically may not negotiate with an opposing party’s nonlawyer public adjuster if the adjuster is not supervised by a lawyer. A lawyer may communicate directly with an opposing party who is “represented” by a public adjuster if the adjuster is not supervised by a lawyer or authorized to practice law. [ER 4.2, 4.3, 5.5(b)]

98-04: Communication with Opposing Party; Communication with Unrepresented Party

This opinion discusses a lawyer's ethical duties where a corporate parent is represented in a matter, and the attorney desires to communicate about the subject matter of the representation with an employee of a subsidiary of the corporation, without consent of the parent corporation’s counsel.  [ER 4.2]

96-02: Contacting Non-party Witness; Homeowner's Association; Communication with Adverse Parties; Ex Parte Communications

An attorney who is litigating against a homeowner's association may communicate  with general members of the association who are not board members or officers of the association and are not in a position to bind the association, without the prior consent of counsel for the association.  [ERs 4.2, 4.3, 4.4]

95-07: Communication with Represented Party; Communication with Corporate Employees

The ethical propriety of communicating with current or former employees of opposing party will depend upon (1) whether the acts, omissions or statements of the employee may be imputed to the employer; and (2) whether the employee is represented by counsel.  [ER 4.2]

91-03: Scope of Representation; Candor Toward Tribunal; Fairness to Opposing Party or Counsel

Guidelines for attorney who prepares pleadings, gives legal advice and provides other legal services for client who appears in court in propria persona.

89-05: Opposing Party and Counsel; Communication with Person Represented by Counsel

Committee Deadlocked; Two alternative opinions were issued. In Opinion A., the divided committee concluded that is not improper for a lawyer or his/her agent to interview a former employee of a co-defendant without first obtaining the consent of the codefendant's counsel. In Opinion B., the committee opined that ex parte contact with a former employee is prohibited if the acts or omissions of the former employee, while employed, may be imputed to the employer for purposes of establishing liability; the contact may be improper if the former employee has had communications with the former employee's counsel that are protected by the attorney/client privilege. Both committee conclusions would not differ if the co-defendant had obtained from the plaintiff a covenant not to execute in order to shield it from exposure to the plaintiff.

87-25: Truthfulness; Unrepresented Persons

Propriety of plaintiff's attorney taking a statement from a person named as a defendant in plaintiff's complaint, but who is unserved and unrepresented by counsel without disclosing to that person her status as a named defendant.

87-08: Communication; Adverse Party

Attorney may not interview the daughter of his client, who is represented by other counsel, in the absence of opposing counsel.