June 10, 2010
The Meaning Of Rule 4.2
The Oregon Supreme Court has imposed a public reprimand of an attorney for a violation of the rule that prohibits communication with a represented person on the subject matter of the representation. The attorney had taken the represented person's deposition without notice to counsel. The court rejected a variety of theories as to why the ethical rule was not violated:
RPC 4.2 does not prohibit all communications between a lawyer and a person represented by counsel. Rather, that rule prohibits communications between lawyers and represented persons only when (1) the communication occurs in the course of the lawyer's representation of a client or the lawyer's interests; (2) the person with whom the lawyer communicates is represented; (3) the communication is on the subject of both the lawyer's representation and the person's representation; and (4) the lawyer knows that the person is represented on that subject.
In this case, there is no dispute that the accused communicated with Fahey in the course of representing Jewett-Cameron, that Fahey was represented in the criminal action, and that the accused knew that he was communicating with Fahey on the subject on which Fahey was represented. The only question is whether the communication concerned the subject on which the accused represented Jewett-Cameron and on which Coit represented Fahey. As a factual matter, the answer to that question is "yes." The subject on which the accused represented Jewett-Cameron was Greenwood's alleged overstatement of its inventory. The accused sought to recover part of the purchase price from Greenwood on the theory that Greenwood's assets were less than its books showed. Coit represented Fahey on that same subject. The criminal action was based on Fahey's embezzlement from Greenwood, which resulted in Greenwood's overstated inventory. Factually, each lawyer's representation involved a common subject -- whether Greenwood's books were overstated.
The accused does not dispute that factual proposition. He argues instead that the word "subject" in RPC 4.2 means "matter" and that "matter" means the specific legal matter on which he was representing his client. More specifically, the accused argues that his communication with Fahey would violate RPC 4.2 only if Coit represented Fahey in Jewett-Cameron's action against Greenwood and if the accused knew that fact.
The accused's argument is difficult to square with the text of the rule. The rule uses the word "subject," not "matter." In this context, "subject" means
"something concerning which something is said or done * * * <let's say no more on that ~> <treated religion as the first and greatest of ~s> <the ~ of your essay> < a ~ worth of a great dramatist>."
The context of RPC 4.2 is also at odds with the accused's interpretation of the term "subject." See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining that the context for interpreting a statute's text includes "'the preexisting common law and the statutory framework within which the law was enacted'" (quoting Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998)). RPC 4.2 is generally modeled on American Bar Association (ABA) Model Rule 4.2 (2002). Oregon's rule differs from the ABA model rule in at least one respect. The model rule prohibits a lawyer from communicating with a "person the lawyer knows to be represented by another lawyer in the matter." The Oregon rule prohibits a lawyer from communicating with a person "the lawyer knows to be represented by a lawyer on that subject."
The Oregon rule's use of "subject" rather than the defined term "matter" cuts against the accused's argument that we should substitute "matter" for "subject." (citation omitted) Indeed, RPC 4.2 continues the use of the term "subject" found in former DR 7-104 (1984). In construing a former version of the rule, this court held that it prohibited a district attorney from communicating with a defendant regarding the defendant's participation as an undercover drug informant when the district attorney knew that the defendant was represented on pending rape and robbery charges. In re Burrows, 291 Or 135, 143-44, 629 P2d 820 (1981). In that case, the accused argued that his communications did not relate to the rape or the robbery charges, the particular matters on which the defendant was represented, "but to the separate subject matter of undercover drug activities." Id. at 142. This court disagreed. It reasoned that, because it was clear that the defendant's participation as an undercover informant would affect his sentencing in the rape and robbery proceedings, "'the subject matter of the [accused's] communications necessarily involved the pending criminal charges.'" Id. at 143-44 (quoting and adopting the trial panel's findings).
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