Chapter 4: Transactions with Persons Other Than Clients

Question 1

Rule 4.1 Truthfulness in Statements to Others

Answer 1

a lawyer shall not knowingly:*
(a) make a false statement of material fact or law to a third person;* or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent* act by a client, unless disclosure is prohibited by Business and Professions
Code section 6068, subdivision (e)(1) or rule 1.6.

Comment
[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party
of relevant facts.
A nondisclosure can be the equivalent of a false statement of material fact or law under paragraph (a) where a lawyer makes a partially true but misleading material statement or material omission.

Question 2

Rule 4.2 Communication with a Represented
Person (a)(b)

Answer 2

(a) In representing a client, a lawyer shall not communicate directly or indirectly 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.
(b) In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits
communications with:
(1) A current officer, director, partner,or
managing agent of the organization; or
(2) A current employee, member, agent, or
other constituent of the organization, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or
criminal liability.

Question 3

Rule 4.2 Communication with a Represented
Person(c)(d)

Answer 3

(c) This rule shall not prohibit:
(1) communications with a public official,
board, committee, or body; or
(2) communications otherwise authorized by
law or a court order.
(d) For purposes of this rule:
(1) “Managing agent” means an employee,
member, agent, or other constituent of an
organization with substantial* discretionary
authority over decisions that determine
organizational policy.
(2) “Public official” means a public officer of
the United States government, or of a state,
county, city, town, political subdivision, or other
governmental organization, with the
comparable decision-making authority and
responsibilities as the organizational
constituents described in paragraph (b)(1).

Comment:
[4] This rule does not prohibit communications with
a represented person* concerning matters outside
the representation. Similarly, a lawyer who knows*
that a person* is being provided with limited scope
representation is not prohibited from communicating
with that person* with respect to matters that are
outside the scope of the limited representation.

Question 4

Rule 4.3 Communicating with an
Unrepresented Person

Answer 4

(a) If atty is communicating with a person not represented by counsel on behalf of the client, atty must not misrepresent their interest in the matter. When the lawyer knows or reasonably should know* that the unrepresented person* incorrectly believes* the lawyer is
disinterested in the matter, the lawyer shall make reasonable* efforts to correct the misunderstanding.
If the lawyer knows* or reasonably should know* that the interests of the unrepresented person* are in conflict with the interests of the client, the lawyer
shall not give legal advice to that person,* except that the lawyer may, but is not required to, advise the person* to secure counsel.

(b) When atty is communicating on behalf of client with a person not represented by counsel, atty shall not seek to obtain privileged or other confidential information the lawyer knows* or reasonably should know* the person* may not reveal without violating a duty to another or which the lawyer is not otherwise entitled to receive.

Question 5

Rule 4.4 Duties Concerning Inadvertently
Transmitted Writings

Answer 5

Where it is reasonably* apparent to a lawyer who receives a writing* relating to a lawyer’s representation of a client that the writing* was inadvertently sent or produced, and the lawyer knows* or reasonably should know* that the writing* is privileged or subject to the work product doctrine, the lawyer shall:
(a) refrain from examining the writing* any more than is necessary to determine that it is privileged or subject to the work product doctrine, and (b) notify the sender.

Comment
[1] If a lawyer determines this rule applies to a transmitted writing,* the lawyer should return the writing* to the sender, seek to reach agreement with the sender regarding the disposition of the writing,*
or seek guidance from a tribunal.*

This rule does not apply to writings may have been inappropriately disclosed by the sending person.