Can a defendant's lawyer contact former plaintiffs who already settled their claims, to investigate their old lawyers, without going through plaintiffs' counsel?

Plain-English summary

Opinion 96-01 addressed a corporate defendant's lawyer who wanted to interview former plaintiffs who had settled their claims, to gather evidence that the plaintiffs' lawyers had knowingly submitted fabricated claims. The lawyer proposed to initiate the contacts without notifying plaintiffs' counsel, and the client disclaimed any intent to seek redress against the settling plaintiffs themselves. The Committee analyzed the proposal under Rule 4.2 (contact with represented parties) and Rules 4.3 and 4.4 (contact with unrepresented parties and third persons).

Under Rule 4.2, the lawyer could not communicate about the matter with a person represented by counsel without consent or legal authorization. The key question was whether the settling plaintiffs were still "represented by another lawyer in the matter." The Committee noted that, under Utah law, absent disturbing events or special arrangement, the attorney-client relationship ends when the specific task is completed, with a plaintiff's lawyer's employment generally terminating on satisfaction of judgment. The burden is on the contacting lawyer to determine the person's represented status; if the lawyer cannot confirm the prior representation has terminated, Rule 4.2 bars the contact.

Compliance with Rule 4.2 does not end the inquiry. Rule 4.4 bars using means whose only substantial purpose is to embarrass, delay, or burden a third person, and bars methods of obtaining evidence that violate a person's legal rights, including the attorney-client privilege held by the settling plaintiffs. The Committee explained that the privilege would not attach to communications made to facilitate a fraud, but where it exists, eliciting privileged information without appropriate disclosure violates Rule 4.4. Because the settling plaintiffs are likely lay persons who could unknowingly waive the privilege and expose themselves to liability, and because Rule 4.3 bars giving an unrepresented person advice other than to obtain counsel and bars implying disinterest, the Committee held that the lawyer must make sufficient disclosures: identify himself as a lawyer, identify the client, disclose that the person's former lawyer may be an adverse party, ask whether the person is represented, clarify that the lawyer does not represent the person, clarify that the person need not answer and may have counsel present, and warn that disclosing privileged discussions could waive the privilege. Assuming the plaintiffs are unrepresented and these disclosures are made, the contact is permissible.

Currency note

This opinion was issued in 1996, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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, deadline, or requirement mentioned here.

Common questions

Q: Can a defense lawyer contact opposing plaintiffs who already settled?

A: Yes, conditionally. The opinion concluded the lawyer may contact settling former plaintiffs only if they are no longer represented by counsel and only after making appropriate disclosures.

Q: How does the lawyer know whether the former plaintiff is still represented?

A: The lawyer must determine it, and bears the burden. The opinion noted that under Utah law a plaintiff's lawyer's employment generally terminates on satisfaction of judgment, but the contacting lawyer must confirm the relationship has ended and that no special circumstances rebut that presumption.

Q: What must the lawyer disclose before questioning the former plaintiff?

A: Per the opinion, the lawyer must identify himself as a lawyer and identify his client, disclose that the person's former lawyer may be an adverse party, ask whether the person is represented, clarify that he does not represent the person and that the person need not answer, and warn that revealing privileged discussions could waive the privilege.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 4.2 (communication with a person represented by counsel, Model Rule 4.2), Rule 4.3 (dealing with an unrepresented person, Model Rule 4.3), and Rule 4.4 (respect for the rights of third persons, Model Rule 4.4). The analysis turned on when the attorney-client relationship terminates after settlement, on the contacting lawyer's burden to confirm represented status, and on the duty not to elicit privileged information from an unrepresented lay person without adequate disclosure.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Utah Rule 4.2 (communication with represented persons)
• Model Rule 4.3 / Utah Rule 4.3 (dealing with an unrepresented person)
• Model Rule 4.4 / Utah Rule 4.4 (respect for rights of third persons)

Cases:

• Sandall v. Sandall, 193 P. 1093 (Utah 1920); Atkinson v. Atkinson, 490 P.2d 729 (Utah 1971), termination of the attorney-client relationship
• State v. Carter, 578 P.2d 1275 (Utah 1978), crime-fraud exception to privilege
• Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), inducing waiver of privilege

Other opinions cited:

• ABA Formal Op. 95-396, communications with represented persons
• ABA Formal Op. 91-359, contact with former employees of an adverse corporate party

See also

• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 91-359: Contact With a Former Employee of an Adverse Party
• Utah Ethics Op. 13-01: Litigation-Hold Email to a Represented Employee
• Utah Ethics Op. 99-03: Ex Parte Contact With the Treating Physician

Source

• Landing page: https://www.utahbar.org/ethics-opinions/1996-01/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1996-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah Ethics Opinions 1996. 96-01. USB EAOC Opinion No. 96-01

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 96-01 Approved April 26, 1996

Issue: May a lawyer representing a defendant in multiple lawsuits asserting similar claims initiate and conduct ex parte communications with former plaintiffs who have settled their claims?

Opinion: Yes, but only if the settling plaintiffs are not represented by counsel and only after appropriate disclosures have been made by the lawyer to the settling plaintiffs.

Facts: A lawyer's corporate client has been and is a defendant in multiple civil lawsuits. Certain lawsuits have been settled and others are pending. Most of the current lawsuits were filed by the same plaintiffs' lawyers who represented the individuals whose claims have been settled. (fn1)

The lawyer's client believes that random audits of the records of current claimants reveal a lack of basis for many of the claims asserted. The client desires to bring an action against the claimant lawyers who, in the client's view, have asserted meritless current claims.

The client has asked the lawyer to interview some of the individuals who brought settled claims that the client believes were supported by false or questionable evidence. The objective of this investigation is to acquire evidence, if any, that the claimant lawyers knowingly recruited clients and deliberately submitted on behalf of those clients claims that were supported by fabricated evidence.

The client wants the lawyer to ask the settling plaintiffs to disclose what their lawyers told them about bringing the settled claims. The proposed communications with the settling plaintiffs would be initiated by the lawyer for the corporate client. The lawyer would not inform counsel who represented settling plaintiffs of these communications.

The client has advised the lawyer that it has no intention to seek redress from any of the individuals who have settled their claims. (fn2) Times to appeal or reopen have generally expired.

Analysis: The Utah Rules of Professional Conduct contain two basic rules regarding contact with persons who are not the lawyer's client. The first is found in Rule 4.2, which forbids contact with represented parties, and the second is found in Rules 4.3 and 4.4, which govern contact with unrepresented parties and third persons.

Rule 4.2

The relevant portion of Rule 4.2 of the Utah Rules of Professional Conduct states:

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. (fn3)

Discussion of the last phrase of this Rule is quickly concluded: The corporation's lawyer does not have consent (and indeed wants to initiate the conversation without notifying plaintiffs' counsel) and does not propose to obtain a court order authorizing the communication.

Analysis of the first phrase of the Rule is more difficult and involves a discussion of whether the settling plaintiffs are "represented by another lawyer in the matter." The issue is fact-specific and the burden of determining the person's represented status is on the contacting lawyer. Under Utah law, in the absence of "disturbing events or special arrangement," a lawyer's employment comes to an end and the attorney-client relationship is terminated with the completion of the specific task for which the lawyer was employed. (fn4) Utah courts generally follow the common law rule that the employment of the defendant's lawyer terminates upon entry of judgment, while the employment of the plaintiff's lawyer terminates upon satisfaction of judgment.

In our situation, the question is whether the relationship between certain plaintiffs and their lawyer has terminated. We assume that final judgment has been entered on the settlement offered by defendant and accepted by plaintiff. The corporation's lawyer, who desires to question those plaintiffs, must determine whether the judgment has been satisfied and whether there are other special circumstances that might rebut the presumption that the attorney-client relationship has thus terminated. (fn5)

If the settling plaintiffs are still represented by counsel, or if the corporation's lawyer cannot confirm that the relationship between the settling plaintiffs and their counsel has terminated, Rule 4.2 would prohibit the proposed communications.

Careful attention to the current relationship between the settling plaintiffs and their counsel may allow the corporation's lawyer to contact the settling plaintiffs without violating Rule 4.2. The burden of showing compliance with Rule 4.2 is, however, on the corporation's lawyer.

Rules 4.4 and 4.3

Compliance with Rule 4.2 does not end the inquiry. The corporation's counsel must also follow the Utah Rules of Professional Conduct on contacting unrepresented parties and third persons.

Utah Rule of Professional Conduct 4.4 states:

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.

The proposed communications with settling plaintiffs raise concerns under both parts of Rule 4.4.

First, the proposed communications would not be proper if they have no substantial purpose other than to embarrass, delay, or burden a third person. The client in this case is a defendant in ongoing litigation in which the lawyers it proposes to investigate represent plaintiffs. The question of whether the proposed communication "have no substantial purpose other than to embarrass, delay, or burden" plaintiffs or their lawyers in that litigation is a question of fact that should be considered and resolved.

Second, the proposed communications could constitute a "method of obtaining evidence that violates the legal rights" of the settling plaintiffs. In particular, any attorney-client privilege is a "legal right" of the settling plaintiffs within the meaning of Rule 4.4. (fn6)

Under Utah law the privilege would not attach to communications that the client knew or should have known were made for the purpose of facilitating a fraud. (fn7) If no privilege exists, the proposed communications would not violate any legal right of the settling plaintiffs. If the privilege exists, requesting this information without appropriate disclosure is a method of obtaining evidence that would violate Rule 4.4 by violating the settling plaintiffs' legal rights to maintain the attorney-client privilege. (fn8)

The settling plaintiffs can waive the protection of the privilege and, in fact, may do so by answering questions from the corporation's lawyer. These settling plaintiffs are likely to be lay persons who are generally uninformed about their rights with respect to the attorney-client privilege. Waiver of the privilege in this case may subject the settling plaintiffs to civil or criminal liability for their participation in presenting false or fraudulent claims to the court.

Therefore, in order for the corporation's lawyers to comply with Rules 4.4 and 4.3 (fn9) in contacting the settling plaintiffs, they must make sufficient disclosures. Based upon the Rules, ethics opinions and case law, at least the following should be discussed:

Identify the interviewer as a lawyer. (fn10)

Disclose who the lawyer is representing. (fn11)

Disclose the nature of the lawyer's representation, including the fact that the person's former lawyer may be an adverse party. (fn12)

Ask if the person is currently represented by counsel. (fn13)

Clarify that the lawyer is not representing the interviewee. (fn14)

Clarify that the interviewee is not required to answer questions or supply information and that the interviewee may have counsel present. (fn15)

Clarify that an attorney-client privilege may protect discussions between the interviewee and the interviewee's counsel in the settled lawsuits, and that disclosing any of the contents of such discussions could waive that privilege as to all of the contents of such discussions so that anyone could find them out. (fn16)

It is the lawyer's burden in this case to ensure that the lawyer's actions will not violate the Rules of Professional Conduct. Assuming the settling plaintiffs are not represented by counsel and adequate disclosures are made, the corporation's lawyer may contact the settling plaintiffs.

Rules Cited: 4.2, 4.3, 4.4