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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-13
Communication with Party Opponent
You state that your wife is a member of a group of defendants in a lawsuit filed in Baltimore, Maryland by a group of plaintiffs. Although not named your daughter and her husband are members of the group of plaintiffs. Recently your daughter, her husband and your grandson visited you at your vacation home. They brought with them a friend who identified himself as the plaintiff's lawyer only after being ""pressed."" The purported purpose of his visit was merely social. He was asked to leave, left, and returned the next day. At some point during his visits he stated he had been hospitalized for mental problems. You ask if there are professional restrictions on his behavior and the position of the Bar Association (on his behavior).
The ethical conduct of Maryland lawyers is governed by the Rules of Professional Conduct promulgated by the Maryland Court of Appeals. In reviewing those rules we have concluded that Rules 4.2, 4.3 and 4.4 may apply in the situation you outlined. Rule 4.2 provides that:
""In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so.""
Rule 4.3 provides that:
""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, the lawyer shall make reasonable efforts to correct the misunderstanding.""
If the lawyer you complain of did not or was not attempting to communicate with your wife about the subject matter of the lawsuit we do not believe he violated either rule. If, on the other hand, he attempted to communicate with your wife about the subject matter of the lawsuit Rule 4.2 or 4.3 apply depending whether or not your wife is represented by counsel. (you told me by telephone that your wife is represented.) It should be noted, however, that neither rule prohibits communication with a party on matters outside or unrelated to the subject of the lawsuit.
Whether or not the lawyer you complain of has violated Rule 4.2 or 4.3, Rule 4.4 may also apply in the situation you described. It provides that:
""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 the lawyer knows violate the legal rights of such a person.""
If the lawyer's visit to your vacation home was merely a social visit we see no violation of this rule. If, however, he was actually on an evidence gathering expedition then he may well have violated 4.3. Simply put, without further information it is difficult to determine whether the conduct of the lawyer was unethical.
With regard to the lawyer's admitted mental problems a lawyer is required to provide his client with competent representation. If his health has limited his ability to provide such representation he should withdraw from that representation. Of course, that issue involves his relationship with his clients and not your wife.
The Committee on Ethics responds to requests for opinions on the application of the Rules of Professional Conduct to specific situations. We do not opine on legal matters. Also, we do not opine on matters of social taste. The Committee does not take any steps regarding the enforcement of professional conduct by members of the legal profession. As I mentioned in our telephone conversation that responsibility lies with the Attorney Grievance Commission, an arm of the Maryland Court of Appeals.
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