Hello welcome to this JACPA Ethics Alert blog which will discuss a recent Washington Court of Appeals opinion which found that a lawyer who responded to an e-mail from a represented opposing party who complained that her lawyer was acting against her wishes and stated that she would obtain a new lawyer violated the Washington Bar rule prohibiting a lawyer from communicating with a represented party. The lawyer also prepared a sworn declaration which was executed by the represented party and filed with the trial court. The opinion is Engstrom v. Goodman, Wash. Ct. App. 1st Div., No. 66557-0-I (March 5, 2012).
The lawyer represented Engstrom in a personal injury case against Hardesten (who is called Rebecca Harsten Goodman in the case caption). After Engstrom prevailed at a mandatory arbitration, Hardesten’s insurance defense attorney filed a request for a trial de novo. A few days later, Hardesten sent an e-mail to the lawyer stating that she did not agree to a new trial and no longer wanted to be represented by her current insurance defense lawyer. She also asked the lawyer to contact her.
After the lawyer received the e-mail, he prepared a sworn declaration, which Hardesten signed, stating that she did not authorize her attorney to request a trial de novo. The declaration also asserted that Hardesten was “currently seeking independent counsel” but had “not retained an attorney to date.” The lawyer also prepared and executed a declaration wherein he confirmed that he received the e-mail from Hardesten and filed a motion to strike Hardesten’s request for a new trial with the declarations. Hardesten’s lawyer then withdrew and her new lawyer moved to strike the two declarations as improperly obtained in violation of the Washington Bar rules and requested that sanctions be imposed.
The trial court found that the declaration was obtained by the lawyer in violation of Washington Rule of Professional Conduct 4.2 (substantially similar to Florida Bar Rule 4-4.2), which prohibits a lawyer from communicating directly with a represented party. The trial court struck the declarations and imposed a $3,000.00 sanction on the lawyer for filing a frivolous motion. The lawyer withdrew a few days later and Engstrom retained a new lawyer and appealed the trial judge’s order.
The Washington Court of Appeals opinion affirmed the trial court’s finding that the lawyer violated Washington Bar rule 4.2 and found that it was irrelevant that Hardesten initiated the communications by sending the lawyer the e-mail since comment (3) to Rule 4.2 expressly states that the rule applies “even though the represented party initiates or consents to the communication” and if that occurs, the lawyer “must immediately terminate communication” with the represented party, and the lawyer failed to do this.
The opinion also rejected the argument that the lawyer could properly contact Hardesten because her communication gave him reason to believe she was unrepresented. According to the opinion, the question is whether there was a reasonable basis for the lawyer to believe that a party may be represented and, in this case, Hardesten’s attorney had not withdrawn and the lawyer had (or should have had) a reasonable basis to believe that she was still represented, notwithstanding her statement that she did not wish to be represented by that attorney. The lawyer could (and should) have simply forwarded the e-mail to her attorney or, in the alternative, he could have submitted the matter to the court under a Washington statute that permits a judge to require proof of a lawyer’s authority to appear as counsel when there are reasonable grounds for the court to inquire.
The opinion further found that the trial court did not abuse its discretion by striking the two tainted declarations as a remedy for the violation of Rule 4.2. With regard to the $3,000.00 sanction imposed on the lawyer, the opinion stated that the issue was not before it because the lawyer did not appeal; however, the appellate court would not have found an abuse of discretion even if the issue were before it since the lawyer had no admissible evidence to support the motion to strike Hardesten’s request for trial de novo after the two declarations were stricken and, after striking the declarations, the trial court had discretion to sanction the lawyer for filing a frivolous motion under the Washington civil procedure rules.
Bottom line: Lawyers beware…if an opposing party who has previously been represented by counsel communicates with you (in whatever form, including electronic mail), and you have not received notice that the other lawyer has withdrawn, do not respond or contact the party. As the court indicated in this opinion, if the lawyer of record has not formally withdrawn, the lawyer should not respond and must contact and/or forward the communication to opposing counsel and obtain clarification.
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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