UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-25
An attorney has been asked by a student's parents to represent them in connection with personal injuries the student sustained while in school. School officials and the child's teacher have requested a meeting with the child's parents to discuss the accident and subsequent injuries.
QUESTION:
Is it proper for the attorney to accompany the parents to the meeting to discuss the injuries with the officials and the child's teacher?
SUMMARY:
A lawyer for one party may not discuss his client's case with another party, who is also represented by a lawyer, unless the lawyer has the other counsel's consent or is authorized by law or rule to do so.
OPINION:
This committee assumes that the school is represented by counsel. "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 4.2. The rule applies whenever a lawyer knows that a person has retained legal counsel. A 1995 formal ABA opinion concluded that the rule does not "imply a duty to inquire" as to whether the person is represented, but a lawyer may not avoid Rule 4.2 "by closing her eyes to the obvious." ABA Formal Op. No. 95-396. Absent the permission of the school's counsel, an opposing lawyer may not speak to current employees who by virtue of their authority are able to bind the school in the situation at hand. S.C. Ethics Advisory Op.# 94-25.
The attorney asks whether it is improper to accompany the parents to the meeting to discuss the injuries with the officials and the child's teacher. While it is improper for the attorney to discuss the subject of the representation with the represented party absent counsel's consent or authorization of law, this committee finds no rule barring the attorney from merely accompanying the parents to the meeting. However, a lawyer should not attempt to circumvent Rule 4.2 by using the client as an intermediary for impermissible communications with another represented party. See S.C. Ethics Advisory Op. # 91-17.
As a practical matter, it may be difficult for the lawyer to attend the meeting and not communicate with school officials. Consequently, the lawyer may be well advised to obtain consent from the attorney for the school district before attending the meeting.