Jan. 18, 2023 – In a case where the opposing party receives limited scope representation, can a lawyer communicate directly with that party?
I am negotiating a real estate deal with a developer on behalf of a client.
I thought that the developer was unrepresented, but after a recent negotiating session, the developer told me that she would have to “talk to her lawyer” about the most recent proposals.
I asked if she was represented in the matter, and the developer stated that she does have a lawyer she talks to about the details, but that she was handling the negotiations herself.
I said that I needed to speak to that lawyer to get their permission to continue, but the developer told me that there was no need to speak to her lawyer as he was just giving advice behind the scenes, and that she would get back to me about the proposals.
Now that I know the developer is receiving “behind the scenes advice” from a lawyer, may I continue to speak to the developer?
The relevant rule on these facts is SCR 20:4.2, which states:
(a) 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.
(b) An otherwise unrepresented party to whom limited scope representation is being provided or has been provided in accordance with SCR 20:1.2(c) is considered to be unrepresented for purposes of this rule unless the lawyer providing limited scope representation notifies the opposing lawyer otherwise.
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.
Subsection (b) is a Wisconsin specific provision that is not found in ABA Model Rule 4.2, and was adopted by the Wisconsin Supreme Court as part of several changes to disciplinary rules and statutes intended to promote limited scope representation in Wisconsin.1
On these facts, the developer is clearly receiving limited scope representation as set forth in SCR 20:1.2(c), and therefore is considered unrepresented for purposes of SCR 20:4.2 unless and until the lawyer giving advice notifies opposing counsel otherwise.
Thus, the lawyer is free to continue communicating with the developer unless and until the lawyer providing the behind-the-scenes legal notifies opposing counsel otherwise.
The distinction here between Wisconsin’s SCR 20:4.2(b) and ABA Model Rule 4.2 is particularly important in light of recently issued ABA Formal Ethics Opinion 502 (2022).
This opinion correctly analyzed ABA Model Rule 4.2 as preventing further communication with a person once a lawyer learns that the person is receiving limited scope representation without the consent of the lawyer providing limited scope representation – the exact opposite of the conclusion called for under Wisconsin’s SCR 20:4.2(b).
A Research Lesson: Start with Wisconsin’s Rules
This highlights of the importance of understanding the actual disciplinary rules in effect in your jurisdiction.
Most states, including Wisconsin, base their disciplinary rules on the ABA Model Rules, and researching ethics opinions from the ABA and other states is important when facing problems in professional responsibility law, but the actual rules in effect in the jurisdiction govern the situation.
In this situation, if a lawyer found ABA Formal Opinion 502 and relied on it, they would reach the wrong conclusion under Wisconsin’s rules. Always start with Wisconsin’s rules of professional conduct for attorneys.
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1 See Wisconsin Supreme Court Order No. 13-10 (2014).