QUESTION: Attorney represents a plaintiff in a medical malpractice case. Defendant identified a doctor as an expert and then stated that the defense would not be using the doctor to testify in the case. May Attorney contact the doctor directly regarding the case? ANSWER: Attorney may make direct contact with the doctor, without violating Rule 4-4.2 as long as Attorney does not know, or have reason to know, of any attorney representing the doctor. If Attorney does contact the doctor, under Rule 4-4.3, Attorney must make Attorney´s role in the matter clear and Attorney must refrain from giving the doctor any advice.

QUESTION: In the course of representing the plaintiff in a personal injury case, may Attorney communicate with the person who Attorney believes is liable, if that person is not represented by counsel? Is the answer the same if the person is an employee of a company that is not represented by counsel? ANSWER: If Attorney does not know, or have reason to know, that the person whom Attorney intends to contact is represented by counsel, Attorney may make contact with that person and take a statement without violating Rule 4-4.2. If Attorney´s contact with that person is based on that person´s employment or former employment by an entity, that person may be considered to be represented if the entity is represented. The second paragraph of the comment to Rule 4-4.2 sets out the test. If Attorney does make contact with an unrepresented person, Attorney must follow the requirements of Rule 4-4.3.

QUESTION: Attorney A represents the plaintiff. Attorney B represents the defendant. Attorney A retains an expert. Attorney A refuses to designate the expert as an expert to be used at trial. Attorney B believes that the expert´s opinions will be helpful to the defense. May Attorney B contact the expert? May Attorney B require the deposition of the expert? ANSWER: The Rules of Professional Conduct do not prohibit Attorney from talking to the expert while no case is pending. If a case is pending, the Rules do not prohibit Attorney from interviewing the expert as long as such an interview does not violate the rules of discovery. Whether such contact would violate the rules of discovery is a legal question beyond the scope of an informal advisory opinion. If Attorney does contact the expert, regardless of whether a case is pending, Attorney must comply with Rule 4-4.3 if the expert is not represented by counsel. If the expert is represented by counsel, under Rule 4-4.2, Attorney must go through the expert´s counsel to contact the expert.

QUESTION: Attorney represents a criminal defendant. A witness has asked Attorney to be present any time when the witness is questioned by representatives of the state. Attorney believes the witness understands that Attorney would be present only to represent the interests of the defendant, not to represent the witness. ANSWER: Based upon the facts set forth, Attorney would not violate any provision of the rules, by being present during police and prosecution interviews of the witness. However, Attorney would violate the conflict of interest rules if Attorney undertook to represent the witness as opposed to being present for the purpose of representing the defendant. In connection with this concern, it is crucial, under Rule 4-4.3, that Attorney make it clear to the witness that Attorney does not represent the witness and that Attorney´s only purpose for being present would be to represent the defendant´s interests. As a result, Attorney would not be able to give the witness advice before, during or after the interview. Additionally, Attorney must inform the witness that, if the witness feels a need for personal legal advice or representation, the witness should contact a private attorney. If Attorney plans to be present at these interviews, Attorney should "make a record" to the extent appropriate under the circumstances at the beginning of each interview.

QUESTION: Attorney proposes to contact jurors from a trial in which Attorney represented a party. Attorney will ask the jurors to sign an affidavit. ANSWER: No provision of the Rules of Professional Conduct prohibits contacting the jurors to ask them to sign an affidavit. As with any witness, the juror has no obligation to speak to Attorney or cooperate with Attorney´s efforts. Attorney must be especially careful in contacting jurors to avoid any conduct or questioning that might be viewed as harassment.

QUESTION: Attorney represented a defendant in a trial resulting in a defense verdict. Plaintiff´s counsel is alleging juror misconduct and indicates that one juror will provide testimony on that allegation. Attorney proposes to contact the juror to interview the juror. ANSWER: No provision of the Rules of Professional Conduct prohibits this contact. As with any witness, the juror has no obligation to speak to Attorney. Attorney must be especially careful in contacting jurors to avoid any conduct or questioning that might be viewed as harassment.

QUESTION: Attorney would like to use the certified mail method of service in dissolution cases. Attorney has learned that unrepresented opposing parties do not understand this method and, therefore, frequently do not respond. May Attorney include a cover letter which explains what is enclosed, what the person is being asked to do and the effect of taking that action. ANSWER: The part of the proposed letter which explains the result of taking the action would involve giving legal advice and would violate Rules 4-1.7 and 4-4.3. However the remainder of the letter would not violate the rules. Attorney may wish to consider tailoring the prescribed notice to the particular situation since Rule 54.16 does not require the notice to be exactly as it is set out in the forms. The appropriateness of any changes to the notice would be a legal question which this office would not address.

QUESTION: May Attorney prepare an entry of appearance and waiver of service for the opposing party in a dissolution case when that person is not represented by counsel? In many instances, the opposing party wishes to avoid the embarrassment of personal service. ANSWER: It would never be permissible to draft a responsive pleading for an unrepresented opposing party. However, the propriety of drafting the entry and accompanying cover letter is dependent on the actual language used. It is permissible under Rules 4-4.3 and 4-1.7 to draft a very simple entry of appearance and submit it to the other party. The cover letter should clearly indicate at the beginning that Attorney does not represent the opposing party and that Attorney does represent the other spouse. The letter should also indicate that the opposing party should consult an independent attorney if he or she has any questions.

QUESTION: Attorney submits a form cover letter and entry of appearance used in dissolution cases. Attorney represents spouse A. The cover letter and entry of appearance are sent to the spouse B when the spouse B is not represented. The cover letter gives instructions for execution of the entry of appearance and requests that spouse B or spouse B´s attorney contact Attorney. The entry of appearance only acknowledges receipt of the petition and waives personal service. ANSWER: Attorney should add language to the beginning of the cover letter clearly indicating that Attorney represents spouse A and not spouse B. The letter should also tell spouse B that, if spouse B has any questions about the entry of appearance or other aspects of the case, spouse B should consult an independent attorney. Other than these concerns, contacting spouse B in this manner would not violate Rules 4-1.7 or 4-4.3.

QUESTION: Attorney represents a client on a real estate contract. A person (X) who is not an attorney or a real estate professional comes to Attorney´s office with client and informs Attorney that X has negotiated the contract for client. X has been advising client on possibly conveying the real estate to a charitable trust which client has established and of which X is trustee. (1) Should Attorney advise X that X is violating the law? (2) Should Attorney report X to the proper authorities? (3) Should Attorney inform client that X is engaging in the unauthorized practice of law? (4) Should Attorney refuse to represent client further in this situation? ANSWER: (1) Attorney should not advise X of anything because X would become a client and this would create a conflict with Attorney´s current client under Rule 4-1.7(a). (2) Yes. (3) Attorney should advise client of the concerns using Attorney´s legal judgment. (4) Attorney may continue to represent client as long as X has no further involvement in the transaction. Attorney must advise client of the ramifications of having a third party present during attorney-client conferences.

QUESTION: Attorney is a criminal defense attorney. (1) What is Attorney´s duty to a state´s witness who asks Attorney whether he is required to honor a subpoena served on behalf of the prosecutor? (2) What if the state´s witness tells Attorney the witness no longer wishes to prosecute? (3) What if a witness for either side who has not been interviewed wishes to speak with the witness" own attorney before speaking with Attorney? (4) What if defense counsel knows that a potential state´s witness is likely to incriminate himself if he is interviewed? Would it be appropriate for Attorney to arrange for counsel for this witness? (5) If Attorney knows that a witness will incriminate himself or herself when testifying, must Attorney take steps to alert the court in advance? May Attorney call the witness? ANSWER: (1) Under Rule 4-4.3, it would be improper for counsel to give the witness any advice. Attorney may only suggest that the witness get advice from his or her own attorney. (2) Same answer as (1) but Attorney may advise the witness to communicate the information to the prosecutor. (3) Attorney may not speak to the witness unless the witness voluntarily agrees to do so or the appropriate legal process is used. (4) Same answer as to (1). It would be improper for Attorney to arrange counsel for the witness. (5) Attorney has a duty of undivided loyalty to the client. If Attorney´s concerns about the witness will interfere with Attorney´s duties to the client, under Rule 4-1.7(b), Attorney must seek to withdraw.

QUESTION: Situation 1. Attorney would prepare a Petition for a dissolution of marriage for Attorney´s client. Attorney would prepare an Entry of Appearance, Waiver of Service and pro forma Answer for the other part, who is not represented. This would be accompanied by a cover letter which would explain what the documents are. Situation 2. In a situation similar to Situation 1, the parties to the marriage want a separation agreement. In order to do this, Attorney´s client must file the Petition and the other party must file an Answer denying that the marriage is irretrievably broken. Attorney would draft the Answer for the other party. Attorney´s client actually wants a dissolution. ANSWER: Both situations would violate Rules 4-4.3 and 4-1.7 Situation 1. Attorney would inherently be providing legal advice to the unrepresented spouse. Although the unrepresented spouse is told that Attorney is not representing him or her, he or she is trusting Attorney to look after his or her interests. Situation 2. In addition to the problems cited above, Attorney would be violating Rule 4-4.3. Attorney would also be violating Rule 4-1.7 by assisting the unrepresented spouse to obtain a separation when the client actually wants a dissolution.