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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-38
Communications: Duty To Give Notice of Deposition in a Related Case
You pose the following set of circumstances:
In September of 1982, Home Improvement Contractor performed certain work for home owner. Thereafter, a fire occurred in home owner's home. The damage caused thereby was paid by Home Owners Insurance Company.
In February of 1984, Home Owners Insurer file suit against Home-Improvement Contractor in the District Court of Maryland. The Attorney for the Insurer called one of the Home Owners as a witness in that Case. On June 26, 1984 a Judgment was entered against Home Improvement Contractor in favor of the Insurer.
In February of 1986, Home Improvement Contractor entered suit against the Lawyer who represented him in the aforementioned Case alleging legal negligence. During the course of discovery in the legal negligence Case pending in the Circuit Court, on August 1, 1987, the Attorneys for the Home Improvement Contractor and the Home Improvement Contractor's original Attorney, now the Defendant in the legal negligence action, took the Deposition of the Home Owner who testified in the first-mentioned District Court Case. That Deposition has since been offered in support of a Motion to Revise the original Judgment against the Home Improvement Contractor in the District Court.
The Attorney who originally represented the Insurer was given notice of the pending Motion to Revise Judgment by the present Attorney for the Home- Improvement Contractor and the Attorney who is representing his prior Attorney in the legal negligence action. The Attorney who represents the Insurer has suggested that he should have been given notice of the Deposition taken of the Home Owner in the Circuit Court legal negligence action. It is admitted that notice of this Deposition was not provided to him. He further admits that his appearance was not entered for any purpose in the Circuit Court Case. The Home Owner who was deposed agreed to have her Deposition taken in her home five days before it was taken and took no steps to contact the Attorney who had represented the Insurer in the aforementioned District Court Case.
You ask whether the attorney for the Insurer in the original District Court case should have been notified of the deposition taken of the homeowner.
We have examined the Maryland Rules of Professional Conduct and find no rule that would require such notification. Rule 4.2 governs communication with persons represented by counsel. Since it appears that the person deposed was not represented by counsel the Rule does not apply. Rule 4.3 concerns dealings with unrepresented persons; however, since there is no allegation that there was a misunderstanding on the part of the unrepresented person as to the lawyers' roles, it does not appear to apply. We conclude that, given the scenario outlined above, there was no violation of the Maryland Rules of Professional Conduct.
We have not considered the rules of discovery or any other aspects of the action to revise judgment. They involve legal issues and are beyond the scope of this Committee's responsibility, which is limited to providing advice and guidance on the Rules of Professional Conduct.
References: Rules 4.2 and 4.3
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