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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1 Rule 4.1 Truthfulness in Statements to Others

4.1:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 4.1
  • Background References: ABA Model Rule 4.1, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

4.1:101   Model Rule Comparison

There are no differences between ARPC Rule 4.1 and the model rule.

4.1:102   Model Code Comparison

Inapplicable.

4.1:200 Truthfulness in Out-of-Court Statements

  • Primary Alabama References: AL Rule 4.1
  • Background References: ABA Model Rule 4.1, Other Jurisdictions
  • Commentary: ABA/BNA § 71:201, ALI-LGL § 98
  • Alabama Commentary:

A lawyer is required to be truthful when dealing with others on the client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. ARPC Rule 4.1 refers to statements of fact. Estimates of price or value placed on the subject of a transaction, a party's intention as to an acceptable settlement of a claim as well as the existence of an undisclosed principal except where non-disclosure of the principal would constitute fraud, are not considered as statements of fact.

4.1:300 Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

  • Primary Alabama References: AL Rule 4.1(b)
  • Background References: ABA Model Rule 4.1(b), Other Jurisdictions
  • Commentary: ABA/BNA § 71:201, ALI-LGL §§ 66, 94, Wolfram §§ 12.6, 13.3
  • Alabama Commentary:

In certain situations substantive law may require a lawyer to disclose information to avoid being deemed to have assisted the client's crime or fraud. However, this requirement is subject to the obligations created by ARPC Rule 1.6 which largely prohibits a lawyer from revealing information relating to the representation of his client unless the client consents after consultation.

4.2 Rule 4.2 Communication with Person Represented by Counsel

4.2:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 4.2
  • Background References: ABA Model Rule 4.2, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

4.2:101   Model Rule Comparison

ARPC 4.2 uses the word party instead of person and the waiver of the "no-contact" provision belongs to the other lawyer not the other party.

4.2:102   Model Code Comparison

Inapplicable.

4.2:200 Communication with a Represented Person

  • Primary Alabama References: AL Rule 4.2
  • Background References: ABA Model Rule 4.2, Other Jurisdictions
  • Commentary: ABA/BNA § 71:301, ALI-LGL § 99-102, Wolfram § 11.6.2
  • Alabama Commentary:

4.2:210   "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Opposing counsel cannot interview, or even contact, current employees in the "management" category of a represented party without permission to do so. Ex parte contact with an employee is prohibited if he is an "executive officer of the adverse party or could otherwise legally bind the adverse party by his testimony, or if the employee was the actual tortfeasor or person whose conduct gave rise to the cause of action." (RO-92-12). These "protected" employees are generally understood to be employees who have been given the authority to formally act or speak for the organization and can legally bind it. (RO-94-11). Employees of this status are usually found in the control group of the organization. Id. An attorney may contact persons who do not fall within this category. (RO - 02-03). In communicating with such persons, the attorney must be careful to avoid infringing upon any attorney-client communications. See also, Felton v. Clarke-Washington Electric Membership Corp., Civil Action No. 93-0564-BH-M (S.D. Ala. 1990)(plaintiff may not initiate ex parte communications with managerial employees whose statements can be imputed to defendant. Communications with former employees are permissible except as to privileged information); RO-90-79 (ex parte communications with defendant corporation employees permissible if employees are not in position to bind corporation and are not alleged tort feasors); RO-88-34 (ex parte communications with low level employees of adverse corporate party may be initiated by attorney); RO-88-27 (low level secretary who works for officer of corporation may be contacted as she is not an agent of the corporation and not in a position to bind corporation).

Ex parte communication with a former employee is not subject to the same scrutiny. See RO-92-12. In Gaylard v. Homemakers of Montgomery, Inc., 675 So.2d 363 (Ala. 1996), the attorney contacted and secretly tape recorded an employee of a home health care agency who had injured the plaintiff. The court found the attorney's action to be unobjectionable based upon the facts that (1) neither the employee interviewed nor her employer were parties within the meaning of Rule 4.2 at the time the interview took place because no suit had been filed and (2) as the employer had yet to retain counsel in this particular matter it cannot be shown that the employee was a person the employee knew to be represented by counsel. The Court took a narrow view of who is a party. Interestingly, the Court noted that evidence obtained in violation of an ethical rule was still admissible, and stated that "the sole remedy for violation of an ethical rule is the imposition of disciplinary measures. The Rules of Professional Conduct. . .do not play a role in determining the admissibility of evidence." However, an attorney who engages in ex parte contact with the opposing counsel may suffer the sanction of disqualification. Ex Parte Lammon, 688 So.2d 836, 838 (Ala. Civ. App. 1996).

Subject to certain conditions, an attorney may communicate with an expert witness employed by the opposing party. For example, an attorney may not coerce or intimidate the expert, attempt to cause the expert to change his opinion, make false statements and comply with any statutory or procedural rules regarding contacts with expert witnesses. See Attorney's Right to Communicate with Opposing Party's Expert Witness, 63 Alabama Lawyer 22-23 (January 2002); RO-87-74; and RO-88-28.

4.2:220   Communications "Authorized by Law" -- Law Enforcement Activities

4.2:230   Communications "Authorized by Law" -- Other

Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. Such communications are not prohibited.

4.2:240   Communication with a Represented Government Agency or Officer

ARPC Rule 4.2 does not prohibit a lawyer from communicating with non-lawyer representatives of a government agency with respect to a separate matter from the controversy that exists between the lawyer's client and the government agency.

4.2:250   Communication with a Confidential Agent of Non-Client

4.3 Rule 4.3 Dealing with Unrepresented Person

4.3:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 4.3
  • Background References: ABA Model Rule 4.3, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

4.3:101   Model Rule Comparison

There are no differences between ARPC Rule 4.3 and the model rule.

4.3:102   Model Code Comparison

Inapplicable.

4.3:200 Dealing with Unrepresented Person

  • Primary Alabama References: AL Rule 4.3
  • Background References: ABA Model Rule 4.3, Other Jurisdictions
  • Commentary: ABA/BNA § 71:501, ALI-LGL § 103, Wolfram § 11.6.3
  • Alabama Commentary:

When an attorney contacts an unrepresented person the attorney should make clear the nature of the attorney's role in the matter giving occasion for the contact and for example whether the witness' current or former employer is an adverse party. The lawyer should not give advice to an unrepresented person other than advice to obtain counsel.

4.4 Rule 4.4 Respect for Rights of Third Persons

4.4:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 4.4
  • Background References: ABA Model Rule 4.4, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

4.4:101   Model Rule Comparison

There are no differences between ARPC Rule 4.4 and the model rule.

4.4:102   Model Code Comparison

Inapplicable.

4.4:200 Disregard of Rights or Interests of Third Persons

  • Primary Alabama References: AL Rule 4.4
  • Background References: ABA Model Rule 4.4, Other Jurisdictions
  • Commentary: ABA/BNA § 71:101, ALI-LGL §§ 103, 106, 107, Wolfram § 12.4.4
  • Alabama Commentary:

4.4:210   Cross-Examining a Truthful Witness; Fostering Falsity

4.4:220   Threatening Prosecution [see 8.4:900]

ARPC Rule 3.10 specifically prohibits a lawyer from threatening criminal prosecution solely to obtain an advantage in a civil matter. Threatening to use or using the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process. ARPC Rule 3.10 does not prevent a client from exercising his rights through the criminal process as well as the civil process. A lawyer may advise his client of his legal right to pursue criminal action. Further, threatening to pursue "all legal remedies available" rather than criminal prosecution would not violate the rule.