Rule 4: Transactions with Non-Clients Flashcards
Truthfulness in Statements to Others Rule
In the course of representing a client a lawyer shall not knowingly:
make a false statement of material fact or law to a third person (4.1a); or
fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by 1.6 confidentiality (4.1b).
What is the standard for a misrepresentation from a lawyer to a third person?
Misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false; or if the lawyer makes partially true but misleading statements or omissions.
Applies to statements of fact, estimates of price or value placed on the subject of a transaction.
A party’s intentions as to an acceptable settlement of a claim are usually not material fact.
(4.1a)
Is a lawyer required to disclose information to a third party to avoid assisting a client’s crime or fraud?
If the only way to avoid assisting a client’s crime or fraud is to disclose information, then the lawyer is required to do so unless prohibited by 1.6 confidentiality.
(4.1b)
Communication with Person Represented by Counsel Rule
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. (4.2)
What if someone represented by other counsel in a matter initiates or consents to communication with a lawyer about the matter?
The lawyer shall not communicate with someone represented by other counsel even if they consent.
If the represented person initiates contact, the lawyer must immediately terminate communications with them.
If the subject matter of the communication is outside the representation, then the communication is allowed.
(4.2)
Can the different parties to a matter communicate with each other?
Yes, communication between parties is fine, just not between a lawyer and a different represented party.
What is the rule for lawyer communication with an organization represented by a different lawyer in the matter?
If the represented party is an organization, communications are prohibited with constituents of the organize who supervise, direct, or regularly consult with the organization’s lawyer; or who have authority to obligate the organization in the matter; or whose act or omission in connection with the matter may be imputed to the organization in terms of liability. (4.2)
Dealing with an Unrepresented Person Rule
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, they shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. (4.3)
Respect for Rights of Third Persons Rule
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. (4.4a)
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent, shall promptly notify the sender. (4.4b)
