My former client's new lawyer disputes my attorney's lien. Can I write the former client directly to explain the lien without violating Rule 4.2?

Plain-English summary

The inquiring attorney represented a client in a personal injury matter under a retainer agreement entitling the attorney to one-third of the amount recovered. Before trial, the client retained new counsel, and at the second attorney's request the inquiring attorney forwarded the client's file and an attorney's lien on the case; the second attorney never entered an appearance. About a year later, a third attorney, then representing the former client, contacted the inquiring attorney, who forwarded a copy of the original lien. The third attorney wrote that the case did not merit "that type of lien" and that only expenses would be paid. Concerned the third attorney might portray the lien negatively to the client, the inquiring attorney asked whether it would be ethically appropriate to (1) write the former client to explain the lien, (2) tell the former client by letter that the attorney could answer questions about the lien, and (3) send the former client copies of the attorneys' correspondence about the lien.

The panel said the inquiry addresses Rule 4.2 ("Communication With Person Represented by Counsel"), under which a lawyer, in representing a client, shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer, unless the lawyer has the other lawyer's consent or is authorized by law. It explained, citing the ABA's Annotated Model Rules of Professional Conduct (2d ed. 1992), that for Rule 4.2 to be implicated the lawyer must be communicating with the represented party in connection with the representation of a client or on behalf of a client.

The panel concluded that the first sentence of the rule limits itself to communications involving representation of a client, and that here the inquiring attorney does not wish to communicate on behalf of a client. It advised that the inquiring attorney's communication with the former client should be confined to the subject of the attorney's liens.

In practice

Under this opinion, Rule 4.2 does not bar a lawyer from communicating directly with a represented former client about the lawyer's own attorney's lien, because the lawyer is acting on his own behalf rather than in the representation of a client. The opinion limits that communication to the subject of the attorney's liens.

Common questions

Q: Can I write my former client directly about my lien even though they now have a lawyer?

A: Per the opinion, Rule 4.2 does not bar it, because the inquiring attorney is not communicating on behalf of a client; the communication should be confined to the subject of the attorney's liens.

Q: When does Rule 4.2 apply?

A: Per the opinion, Rule 4.2 is implicated only when the lawyer is communicating with the represented party in connection with the representation of, or on behalf of, a client.

Q: What may the letter cover?

A: Per the opinion, the communication with the former client should be confined to the subject of the attorney's liens.

Background and rules framework

The opinion applies Rhode Island Rule 4.2 (communication with a person represented by counsel), corresponding to Model Rule 4.2, and reads its first sentence, with support from the ABA Annotated Model Rules, to reach only communications made in the representation of or on behalf of a client. The panel found the lawyer's lien communication outside that scope and limited it to the lien subject.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• RI RPC 4.2

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• ABA, Annotated Model Rules of Professional Conduct (2d ed. 1992), at 425, 429-430: Rule 4.2 applies when the lawyer communicates with the represented party in connection with the representation of a client.

See also

• RI EAP Op. 92-72: Reporting Opposing Counsel's Direct Contact With a Represented Client
• RI EAP Op. 90-08: Cannot Contact a Represented Salesperson Absent Consent
• RI EAP Op. 92-82: Holding Settlement Funds Subject to a Prior Attorney's Lien

Currency note

This opinion was issued in early 1993 (Opinion 92-96, issued March 15, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 4.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 4.2 (communication with a person represented by counsel). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-96.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-96, Request #319
Issued March 15, 1993

An attorney seeks Panel advice regarding whether Rule 4.2 entitled "Communications With Person Represented by Counsel" would be violated in the following matter. The inquiring attorney represented a client in a personal injury matter. The client signed a retainer agreement stating that the attorney would be entitled to a sum equal to one-third of the amount recovered. Prior to the suit being reached for trial, the client retained new counsel. Pursuant to the second attorney's request, the inquiring attorney forwarded the client's file and an attorney lien on the case to the second attorney. The second attorney never entered his appearance in the case.

Approximately one year later, the inquiring attorney received notice from a third attorney who currently represents the former client. The inquiring attorney forwarded a copy of the original lien to the third attorney. The third attorney stated by letter to the inquiring attorney that this case did not merit "that type of lien" and that only expenses would be paid to the inquiring attorney. The inquiring attorney's concern is that the third attorney may communicate in a negative fashion to the client regarding the lien. The attorney asks whether it would be ethically appropriate to: 1) communicate by letter with the former client to explain the lien; 2) explain by letter to the former client that questions regarding the lien could be answered by the attorney; and 3) send the former client copies of various correspondence between the attorneys regarding the lien.

This inquiry addresses Rule 4.2 "Communication With Person Represented by Counsel". The Rule states that:

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.

In order for Rule 4.2 to be implicated, "the lawyer must be communicating with the represented party in connection with the representation of a client or on behalf of a client." See, Annotated Model Rules of Professional Conduct, ABA, 2nd Edition, 1992, pp. 425, 429, 430.

The first sentence of the rule clearly limits itself to communications involving representation of a client. In this instance the inquiring attorney does not wish to communicate on behalf of a client. The inquiring attorney's communication with the former client should be confined to the subject of the attorney's liens.