Klein & Wilson

When talking to unrepresented people - don't deceive them

Emily Post, the Queen of etiquette, said, "there is no excuse for the most unfilial act of all--deception." While she was advising on an unrelated subject, her message rings true for attorneys.

New California Rule of Professional Conduct, rule 4.3 is designed to protect unrepresented people from lawyers trying to get facts supporting their clients' cases.

The first part of the rule says, "[i]n communicating 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 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." In other words, when a lawyer talks to a witness, the lawyer cannot pretend he/she doesn't have a stake in the case result. Moreover, when the witness knows something harmful to the lawyer's client, the lawyer cannot befriend that witness by handing out a little free legal advice.

The second part of the rule says, "[i]n communicating on behalf of a client with a person who is not represented by counsel, a lawyer 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." In short, lawyers should not ask the witness for attorney-client privileged information or any other information the lawyer knows he/she is not entitled to have.

Contrary to most people's understanding, there are rules that govern pretty much all lawyers' activities, both in and out of court. Hopefully, the new Rules of Professional Conduct will encourage lawyers to take the steps needed to convince the public that the law is still an honorable profession.

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