State Bar of Arizona Ethics Opinions

96-02: Contacting Non-party Witness; Homeowner's Association; Communication with Adverse Parties; Ex Parte Communications
1/1996

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]

FACTS[1]

 

An attorney is litigating against a homeowners' association.  The attorney wishes to discuss matters relevant to the litigation with general members of the association who are neither board members or officers of the association nor in a position to bind the association.

 

QUESTION PRESENTED

 

Whether an attorney representing a party in a dispute against a homeowners' association may communicate with general members of the association, who are not board members or officers of the association and not in a position to bind the association, without the presence or consent of the association's attorney.

 

Relevant Ethical Rules

 

ER 4.1  Truthfulness in Statements to Others

 

In the course of representing a client a lawyer shall not knowingly:

 

(a)        make a false statement of material fact or law to a third person;

 

* * * * *

 

ER 4.2   Communication with Person Represented by Counsel

 

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

 

ER 4.3  Dealing with Unrepresented Person

 

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

 

ER 4.4  Respect for Rights of Third Person

 

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

 

OPINION

 

Ethical Rule 4.2 of the Rules of Professional Conduct states that "a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer" without the consent of the other lawyer or legal authority to do so.  The Comment to ER 4.2 addresses the application of this rule to "organizations," and provides an expanded definition of "a party" in cases involving organizations. In pertinent part, the Comment to ER 4.2 provides:

 

            In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter maybe imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

 

The purpose of the prohibition on ex parte contacts with a party known to be represented by counsel is to "(1) prevent unprincipled attorneys from exploiting the disparity in legal skills between attorneys and lay people, (2) preserve the integrity of the attorney-client relationship, (3) help to prevent the inadvertent disclosure of privileged information, and (4) facilitate settlement." Lang v. Superior Court, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (App. 1992), citing Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990).

 

The facts presented by the inquiring attorney resolve the issue addressed in the quoted portion of the Comment to ER 4.2.  Namely, the general members of the homeowners' association at issue specifically do not have any "managerial responsibility" on behalf of the association, their acts or omissions cannot be imputed to the association for the purposes of liability and their statements cannot constitute admissions of the association.  The general members of the association, therefore, cannot be considered "parties" for the purposes of ER 4.2.  Consequently, communicating with these general members about the litigation without the association's attorney being present is not ethically proscribed.  Prior Arizona Ethics Committee Opinions support this conclusion.

 

In Opinion No. 203 (September 23, 1966), the Committee analyzed whether, where a suit had been filed against a municipality, the plaintiff's lawyer may properly contact directly various employees and administrators of the municipality to obtain information about the case without first obtaining the consent of the municipality's counsel.  The Committee concluded that a plaintiff's attorney may contact directly and interview current employees of the defendant municipality for the purpose of obtaining information concerning a case, so long as the attorney:  (a) advises the employees that he is an attorney and represents a client against the municipality; (b) avoids any suggestion calculated to induce the employees to suppress or alter the truth or affect their conduct on the witness stand; and (c) determines that the employees of the municipality do not hold positions wherein they have authority to speak for and bind the municipality.

 

Similarly, in Opinion No. 84-15 (October 31, 1994)[2], the Committee considered whether a law firm, during the course of its representation of individual police officers against an inquiry by their police department supervisors, may informally interview employees of the police department without first obtaining permission from counsel representing the department.  The Committee determined that interviews with present employees were permissible if the attorney:  (a) informs the employees that he is an attorney and represents a client against the police department; (b) avoids any suggestion calculated to induce the employees to suppress or alter the truth or affect their conduct on the witness stand; and (c) determines that the employees of the police department do not hold positions where they have the authority to speak for and bind the police department.[3]

 

Finally, in Opinion No. 87-25 (December 30, 1987), the Committee cited to Opinion No. 80-46 of the Association of the Bar of the City of New York (1980).  In that opinion, that Association outlines certain disclosures that must be made even to mere witnesses (and not parties) who were unrepresented employees of a corporate defendant when attempting to obtain information about that defendant.  The New York Association concluded that the interviewer should always disclose: (1) who the interviewer represents; (2) the fact that the information is sought in connection with litigation; (3) a description of the dispute; and (4) the fact that any disclosure is voluntary.  The Committee again approves of these disclosures.  By making these disclosures, it will also assist the attorney in ensuring compliance with ERs 4.1, 4.3 and 4.4.

 

CONCLUSION

 

An attorney representing a party in a dispute against a homeowners' association may communicate with general members of the association, who are not board members or officers of the association and not in a position to bind the association, without the prior consent or presence of the association's attorney.  There is no legitimate reason for treating an organization such as a homeowners' association any differently than the other types of organizations upon which this Committee has already opined in this context (municipality in No. 203 and the police department in No. 84-15).

 

In order to ensure ethical compliance in connection with communicating with non-managerial, general members of a homeowners' association, the attorney should:  (1) inform the members that he or she is an attorney representing a party against the homeowners' association; (2) disclose the fact that the information is sought in connection with litigation; (3) describe the nature of the dispute; (4) advise of the fact that any disclosure is voluntary; and (5) avoid any suggestion calculated to induce the member to suppress or alter the truth or affect their conduct when appearing on the witness stand.  In addition, the attorney must also comply with all other mandates set forth in ERs 4.1, 4.3 and 4.4.



[1]Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  ã State Bar of Arizona 1996

[2]This opinion was decided under former DR 7-104(A)(1).  That ethical rule was substantially identical to current ER 4.2.

[3]Opinion Nos. 203 and 84-15 provide that if the attorney were to determine that the person the attorney desired to contact had the authority to speak for and bind the relevant organization, the attorney would be ethically precluded form contacting that employee absent first obtaining the consent of the attorney representing the organization.  For the purposes of this opinion, because the facts specifically state that the "general members" of the homeowners' association have no authority to bind the association, this element is presumptively satisfied.