“The walls have ears,” is a catchy phrase and this has never been more true than now, with most people running around with easily concealed digital recording devices (let alone ubiquitous web-cams, security cameras, and the like).
We have frankly been a bit taken back by the number of LEVENTHAL pllc clients who come to us having already surreptitiously recorded potentially important meetings or conversations related to potential litigation. Our experience is anecdotal, of course, but it seems that many people record such conversations without informed consent apparently as a matter of course.
One obvious practice pointer: lawyers should assume they themselves are being surreptitiously recorded all the time. This assumption is obviously overbroad and erroneous to some degree, but lawyers might want to err on the side of over-breadth rather than unfortunately too narrow.
A less obvious but also important consideration: lawyers all know (or should know) that lawyers face ethical rules prohibiting direct communication with represented adversaries (Minn. R. Prof. Conduct 4.2); can lawyers coach clients to contact adversaries directly (and record those interactions)?
Minn. R. Prof. Conduct 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.
Rule 4.2 “applies to the conduct of not only attorneys, but also an attorney’s nonlawyer agents, including investigative agents” (see here at p. 5). This makes great sense, of course. If we prohibit lawyers from such communications, we cannot allow them to avoid the prohibition with a simple conduit.
But how about when the client, herself, is acting under the direction of the lawyer? In that instance, is the client functioning as the lawyer’s “investigative agent”?
In the linked case, U.S. District Court Judge Wilhemina M. Wright (D. Minn.) seems to answer, “Yes.” She seems to suggest that clients can be found to be “investigative agents” of the lawyers, whose communication to an opposing party, might trigger Rule 4.2 violations against the lawyers.
As to the case before her, Judge Wright reasoned: “[i]t is undisputed, and the record reflects, that [the whistle-blowing plaintiff] communicated with [a defendant corporate executive] and other [Defendant company] personnel at the direction of counsel for the United States… And counsel for the United States undisputedly knew that Defendants were represented when these communications occurred. ” (here at p. 6). “Assuming that these communications involved the subject matter of this litigation, counsel for the United States violated Rule 4.2 unless, as addressed below, [the whistle-blower plaintiff’s] contacts with represented persons were ‘authorized . . . by law.'” See MRPC 4.2. Id.
Judge Wright concluded that the communications were “authorized by law” and, on that basis, rejected the motion to dismiss and motion for sanctions. But, in our view, it is not crystal clear that party-to-party communications, even with a lawyer involved in the wings, ever implicate the Rule 4.2 prohibition.
We note the confusion and ambiguity in commentary to North Carolina’s Rule 4.2 provides: “A lawyer may not make a communication prohibited by this Rule through the acts of another,” which suggests that lawyers cannot orchestrate client-to-adverary-party communications behind the scenes. But the North Carolina Rule 4.2 commentary immediately goes on to say, “However, parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client or, in the case of a government lawyer, investigatory personnel, concerning a communication that the client, or such investigatory personnel, is legally entitled to make.”
We have no practice pointer here other than: “proceed with caution.” It is clear that a lawyer’s direct communication to a represented party and not to and through the adversary’s lawyer, is prohibited by the rule. It is also clear that lawyers cannot get around the rule by using a paralegal, secretary, private investigator as a “conduit.” But, in the end, it is an unsettled question as to whether the client, herself, can function as the lawyer’s conduit. Of course, the safer course would be to avoid the “client conduit,” which seems like an end-around the ethical rule.