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CONTACT OF OPPOSING

PARTIES

Op.Pty.- 1

FORMAL OPINION 36


ADJUSTERS

IMPROPER FOR ADJUSTERS TO OBTAIN INFORMATION FROM PLAINTIFF'S PHYSICIAN AFTER SUIT FILED WITHOUT CONSENT OF PLAINTIFF.

QUESTION: Is it proper after suit is filed, for either lay or lawyer adjusters working for a Liability Insurance Company, to go to the Plaintiffs attending physician and attempt to obtain from such physician full information concerning the nature and extent of the injuries suffered by plaintiff-patient, without the consent of the plaintiff?

ANSWER: The Advisory Committee is of the opinion that such action is not proper.

[Rule 4 4.2; 8.4(c) and (d)]

Op.Pty.-2

FORMAL OPINION 83

ATTORNEYS

ATTORNEY FOR PLAINTIFF CANNOT PROPERLY DISCUSS CASE WITH DEFENDANT AFTER KNOWING DEFENDANT IS REPRESENTED.

QUESTION: Is it proper and ethical for a lawyer representing a plaintiff in a claim against a defendant, whose liability is covered by insurance, to discuss the case with defendant after he knows the defendant is represented by counsel furnished by the insurance carrier in its contract of insurance coverage?

ANSWER: The Advisory Committee is of the opinion that it is improper for plaintiff's attorney to discuss the case with the defendant after defendant has been furnished counsel by his insurance carrier and this is known by plaintiff's attorney.

Canon 7 DR7-104(A)(1)

[Rule 4 4.2]

Op.Pty.-3

FORMAL OPINION 90

ATTORNEYS

IMPROPER FOR COUNSEL IN EXCHANGES OR CORRESPONDENCE RESPECTING THE SUBJECT OF THE CONTROVERSY TO SEND COPIES THEREOF TO THE CLIENT OF THE OPPOSING COUNSEL.

QUESTION: Is it proper for a Missouri lawyer in corresponding with opposing Counsel respecting the subject of the controversy to send copies thereof to such Counsel's client?

ANSWER: The Advisory Committee is of the opinion that such practice is improper. Missouri Supreme Court Rule 4 provides that it is improper for a lawyer to communicate in any way upon the subject of controversy with a party represented by Counsel. A person retains a lawyer to represent and advise him respecting a controversy. Rule 4 is designed to allow the lawyer to function properly in his role free from interference by opposing Counsel. The sending of copies of correspondence to opposing Counsel's client is within the proscription of the Rule and improper unless by expressed consent.

[Canon 7 DR7-104(A)(1); Rule 4 4.2]

Op.Pty.-4

FORMAL OPINION 96

LAY INSURANCE ADJUSTERS

NOT UNAUTHORIZED PRACTICE FOR LAY INSURANCE ADJUSTERS EMPLOYED BY LIABILITY INSURANCE COMPANY TO ADJUST AND SETTLE CLAIMS FOR COMPANY'S ASSURED AFTER SUIT IS FILED. ATTORNEY FOR PLAINTIFF NOT IN VIOLATION OF SUPREME COURT RULE 4 IN NEGOTIATING WITH SUCH LAY ADJUSTER IF DONE WITH KNOWLEDGE AND CONSENT OF DEFENDANT'S COUNSEL.

QUESTION: A liability insurance company employs lay adjusters.Suit is filed against an insured of such liability insurance company and the company then employs an attorney who enters his appearance and files pleadings on behalf of the defendant. The lay adjusters there after undertake to deal with and to engage in settlement negotiations directly with the attorney representing the plaintiff in which the possibilities and/or probabilities of recovery are discussed. Are the adjusters practicing law?Is the attorney for plaintiff in violation of Missouri Supreme Court Rule 4 in that he is dealing with such lay adjusters instead of dealing only with the counsel representing the defendant in the pending litigation?

ANSWER: The Advisory Committee is of the opinion that such lay adjusters are not practicing law provided such lay adjusters are determining only the pecuniary limit which the company will be willing to offer or pay in settlement, and provided further said lay adjusters do not attempt to determine the legal liability of the company or its insured, but arrive at their conclusions as to the amount to be offered either regardless of legal liability or upon the advice of a licensed attorney whether such attorney be the attorney who filed the responsive pleading or any other licensed attorney.

The Advisory Committee is further of the opinion that the attorney for plaintiff is not in violation of Supreme Court Rule 4 in dealing with such lay adjusters, instead of dealing only with counsel representing the defendant in the pending litigation, provided that such discussions and negotiations are conducted with the knowledge and consent of the counsel who has filed the responsive pleadings representing the defendant in the pending litigation.

[Canon 2 DR2-102(A)(2); Rule 4 4.2]

Op.Pty.-5

(Opinion omitted. See Notes on Use.)

Op.Pty.-6

(Opinion omitted. See Notes on Use.)

Op.Pty.-7

(Opinion omitted. See Notes on Use.)

Op.Pty.-8

QUESTION: A is charged with the violation of state law wherein V is the victim. A retains C to represent him in the matter. V is not represented.

1. May C contact V concerning the subject matter of the suit? ANSWER: Yes.

2. May C request V consider signing an affidavit of non-prosecution wherein V would formally state that V does not desire the criminal action to proceed further? ANSWER: Yes, if no consideration is proposed for signing such affidavit.

3. Must C obtain permission from the prosecuting attorney's office prior to contacting V or any other witness in the criminal action? ANSWER: No.

4. Does the prosecuting attorney's office have an attorney-client relationship with V?

ANSWER: No.

(a) If so, is there a conflict of interest with the interests of the State of Missouri?

ANSWER: See above.

(b) May the prosecuting attorney claim to represent V without V's consent?

ANSWER: No.

(c) May the prosecuting attorney claim to represent V over V's objections?

ANSWER: No.

(d) May the prosecutor's office prohibit C from contacting V or any other potential witness at trial, and if so, under what circumstances?

ANSWER: Not unless a court order prohibiting such contact is obtained.

(e) May the prosecutor properly instruct V or any other witness in the criminal action not to communicate with C concerning the subject matter of the suit?

ANSWER: The prosecutor can advise V he does not have to communicate with C, but V doesn't have to abide by the prosecutor's advice.

V approaches C and requests C represent V as well as A. V is not charged with any offense against the laws of the State of Missouri, but feels that he is in need of representation in his dealings with the prosecutor's office.

5. May C agree to represent V, and if so, under what circumstances?

ANSWER: No.

V obtains counsel, either retained or appointed. During pretrial proceedings, and after V informs the prosecutor of a desire not to testify,C overhears the prosecutor attempting to change V's mind. During the course of that conversation C overhears the prosecutor intentionally misrepresent facts and the law in his effort to change V's mind.

6. May the prosecutor communicate with V without first complying with the provisions of DR7-104(1)?

ANSWER: Yes, if the interview of the state and V are not adverse.

7. May C advise V to contact V's own lawyer for advice prior to acceding to the prosecutor's desires?

ANSWER: Yes.

8. May the prosecutor advise V as to the law concerning the subject matter of the action where the prosecutor is aware that V retained private counsel (DR7-104)?

ANSWER: If the advice concerns only the criminal law, this is permissible.

9. What, if any, is C's duty concerning reporting the prosecutor's apparent intentional misrepresentation of law and facts to V?

ANSWER: Same as 7 advise V to contact V's own lawyer advice prior to acceding to the prosecutor's desires.

10. Is there a "Prosecutorial Exception" to the Canons of Ethics,and if so, what does it encompass?

ANSWER: No.

Rendered November 7, 1980.

[Rule 4 4.2]

Op.Pty.-9

QUESTION: A is a private attorney retained by and representing Corporation X. B is an attorney employed by and working as in-house counsel for Corporation Y. Corporation Y is engaged in the interstate transportation of goods by rail. Corporation X made a reasonable request pursuant to the Interstate Commerce Act for Corporation Y to transport goods for Corporation X.

A was retained by X to compel Y to transport goods. A advised X to continue making requests for transportation to Y. A has prepared several requests for Y to transport X's goods. Each of these requests was signed by X's vice-president. These requests as made by X's vice-president to Y's president include:

1. A short summary of the facts surrounding Y's refusal to transport;

2. Y's statutory obligation to transport;

3. The additional cost and expense incurred by X because of Y's refusal to transport.

Does A's preparation of the request because made directly to Y's president rather than to Y's legal department violate any Disciplinary Rule?

ANSWER: No. It is the Committee's opinion that it is not improper for the lawyer representing a corporate client to prepare communications for the corporate client's officer to give directly to a corporate officer of an opposing party without going through the legal department of the opposing corporation. The Committee reaches this conclusion because it is their opinion that a demand made to in-house counsel of a corporation does not necessarily meet the legal requirements of a demand upon the corporation itself. Rendered September 11, 1981.

[Rule 4 4.2]

Op.Pty.-10

INFORMAL OPINION 930118

QUESTION: Attorney represents client in a slip and fall case. Can attorney conduct ex parte interviews with management employees of defendant or an employee of defendant who was present at the scene? One management employee is no longer employed by defendant.

ANSWER: Rule 4.2 prohibits ex parte contact with any of these individuals. This rule does not prohibit investigation to locate an individual as long as no information is sought from the individual once he is located.

[4.2]

Op.Pty.-11

INFORMAL OPINION 930133

QUESTION: Attorney wishes to assert an attorney's lien against a former client who is now being represented by another attorney. May attorney serve the notice directly on the former client?

ANSWER: Attorney may only serve the former client directly if the new attorney refuses to accept service on behalf of the former client.

[4.2]

Op.Pty-12

INFORMAL OPINION 930138

QUESTION: May Attorney make ex parte contact with three witnesses who work for a company whose driver was involved in an accident which is the subject of a suit? Witness #1:driver, dismissed as defendant,former employee, has been deposed. Witness #2:another driver for company, not involved in accident. Witness #3:another driver and vehicle maintenance, former employee, not a defendant.

ANSWER: Witness #1: No. Witness #2: Yes. Witness #3: Not if this witness had any maintenance responsibility involving the vehicle in the accident regardless of whether the witness fulfilled that responsibility.

[4.2]

Op.Pty-13

INFORMAL OPINION 930161

QUESTION: Attorney is employed by a government agency in anon-attorney position which includes criminal investigations. The subject of a criminal investigation is also involved in related civil litigation with the agency and is represented by counsel. May Attorney interview the subject without going through the subject's counsel?

ANSWER: Rule 4-4.2 prohibits communication with a represented party "in representing a client." If Attorney is not practicing law, Attorney would not be representing a client and Rule 4-4.2 would not apply. However, if Attorney is operating at the direction of an attorney who is practicing law, Attorney's conduct would be prohibited by Rule 4-8.4(a)because the attorney directing the conduct would be prohibited from contacting a represented party by Rule 4-4.2.

[4.2; 8.4(a)]

Op.Pty.-14

INFORMAL OPINION 930164

QUESTION: Attorney represents a client against a corporation which has counsel. May Attorney communicate regarding the subject of there presentation with an unrepresented former employee of the corporation? What if the person was an independent contractor instead of an employee?

ANSWER: Rule 4.2 applies the same to former employees as it does to current employees. State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202(Mo. banc 1993), indicates that the test depends on function rather than timing. The analysis to be used is found in the comments to the rule which were expressly adopted by the Court in Pitts. The term "person" in the comments can apply to an independent contractor as well as an employee.

[4.2; State ex rel. Pitts v. Roberts]

Op.Pty.-15

INFORMAL OPINION 940017

QUESTION: Does Rule 4-4.2 apply in FELA cases the same as in other cases?

ANSWER: Rule 4-4.2 applies but that rule allows ex parte contact if "the lawyer . . . is authorized by law to do so." It is necessary to look to court decisions for interpretation of how statutes such as the FELA statutes apply to the facts of each particular case.

[4.2; 45 U.S.C § 60]

Op.Pty.-16

INFORMAL OPINION 940063

QUESTION: Attorney is practicing as a visiting attorney in a casein a jurisdiction in which Attorney is not licensed. Attorney would like to make ex parte contact with former employees of the opposing corporate party. The former employees were not upper level management but may have been lower or middle level management. The former employees were not involved in the occurrence giving rise to the suit. The rules of the jurisdiction in which the suit will be heard may allow such contact. If Attorney may not contact the former employees directly, may Attorney's client discuss the matter with the former employees if Attorney does not"coach" the client.

ANSWER: If the former employees were management at any level,Attorney may not engage in ex parte contact with those employees. If the former employees were not management, the remainder of the analysis set out in the comment to Rule 4-4.2 must be performed. If the client engages in ex parte communications with the former employees, Attorney will not be violating Rule 4-8.4 by having another person do what the attorney maynot do if Attorney has not, in any way, expressly or impliedly indicated to the client that he should engage in such communication. Because Attorney is licensed in Missouri, the Missouri rules will apply under Rule 4-8.5although the case is in another jurisdiction.

[4.2; 8.4; 8.5]

Op.Pty.-17

INFORMAL OPINION 940073

QUESTION: Attorney represents a client against a corporation.Attorney has been contacted by a former employee of the corporation withwhom ex parte contact would be prohibited by Rule 4-4.2. The formeremployee has informed Attorney that he has information which would behelpful in the suit but that there are legal issues regarding his ability toprovide the information. The former employee has retained his ownattorney regarding these issues. May Attorney contact this attorney ratherthan the corporation's attorney for permission to speak with the formeremployee.

ANSWER: Yes.

[4.2]

Op.Pty.-18

INFORMAL OPINION 940097

QUESTION: In a worker's compensation case, employer's attorneyrequests a medical examination of the employee. During the examination,the physician tells the employee he will send a copy of his report to theemployee's attorney. After several weeks and the report has not beenreceived, the employee's attorney telephones the physician and inquiresabout the status without discussing substantive matters. Is this animproper ex parte contact?

ANSWER: The limited contact described, under the specificcircumstances described, would not violate the Rules of ProfessionalConduct.

[4.2]

Op.Pty.-19

INFORMAL OPINION 940098

QUESTION: Attorney asks about giving a second opinion at therequest of an individual who is represented by another attorney in apending matter. Does providing a second opinion violate the Rules?

ANSWER: Providing a second opinion to a client of anotherattorney does not violate any provision of the Rules of Professional Conductas long as the client is the one who has initiated the contact.

[4.2]