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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas 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 Arkansas Rule

4.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

4.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

4.1:200   Truthfulness in Out-of-Court Statements

Arkansas has no case law or authority on this topic.

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

Fraud is defined in the terminology section as "conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." See 0.4:440. Because this definition is narrower than the common law definition of fraud, see Howard W. Brill, THE ARKANSAS LAW OF DAMAGES, 33-7,8 (3rd ed. 1996), an attorney must be alert to the risk of potential fraud claims. For example, an attorney who fails to prevent or disclose the fraudulent acts of his clients in reliance on the confidentiality provisions of Rule 1.6 subjects himself to a civil suit by an injured party.

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Arkansas Rule

4.2:101      Model Rule Comparison

Arkansas has not adopted the 1995 amendments to Rule 4.2. The Arkansas Rule remains the same as the Model Rule adopted in 1983.

4.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

4.2:200   Communication with a Represented Person

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

The attorney may be barred from communicating with employees of the opposing party. See Comment [2] to AR Rule 4.2. But the prohibition is not applicable to former employees of a corporate adversary. See American Bar Association Formal Opinion 91-359. For a comprehensive discussion of different standards, see Ernest F. Lidge III, The Ethics of Communicating with an Organization's Employees: An Analysis of the Unworkable "Hybrid" or "Multifactor" Managing-Speaking Agent, ABA, and Niesig Tests and a Proposal for a "Supervisor" Standard, 45 ARK. L. REV. 801 (1993).

Communications between an attorney for an adverse party and a bankruptcy trustee without the knowledge or consent of the attorney for the trustee are discussed in Ark. Bar Ass. Opinion 94-01.

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

The prohibition of AR Rule 4.2 is not applicable if the lawyer is not communicating about the subject of the representation. For example, prosecutors may question a criminal witness without the consent of, or notice to, the attorney for the witness, when the attorney represents the witness in an unrelated matter. Johnson v. State, 321 Ark. 117, 900 S.W. 2d 940 (1995).

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

Arkansas has no case law or authority on this topic.

4.2:240      Communication with a Represented Government Agency or Officer

Arkansas has no case law or authority on this topic.

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

Arkansas has no case law or authority on this topic.

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Arkansas Rule

4.3:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

4.3:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

4.3:200   Dealing with Unrepresented Person

Arkansas has no case law or authority on this topic.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Arkansas Rule

4.4:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

4.4:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

4.4:200   Disregard of Rights or Interests of Third Persons

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

Arkansas has no case law or authority on this topic.

4.4:220      Threatening Prosecution [see 8.4:900]

DR 7-105 prohibited an attorney from filing or threatening to file criminal charges solely to obtain an advantage in a civil matter. In the belief that the objective of that earlier rule was best implemented through the criminal law, the drafters excluded it from the Model Rules. Arguably, the intent of that rule falls within the language of Rule 4.4, as well as Rule 8.4(b,c). However, American Bar Association Formal Opinion 92-363 concludes that such a threat is not improper if the criminal matter is related to the civil claim, if the lawyer has a well-founded belief that both the civil claim and the criminal matter are supported by the facts and the law, and if the lawyer avoids any improper interference in the criminal process. On the other hand, threats of criminal prosecution that are unfair, harassing in nature or equivalent to extortion (see Ar. Code 5-36-101(9)(A)) may be covered by AR Rules 3.1, 4.1, 4.4 and 8.4. Likewise, an agreement to refrain from presenting criminal charges may be part of a settlement agreement, provided such an agreement does not violate state law.

Although an attorney may refer the client or the matter to the prosecutor for the filing of criminal charges, an attorney who does threaten the opposing party with criminal charges subjects himself to a malicious prosecution claim. See Culpepper v. Smith, 302 Ark. 558, 729 S.W.2d 293 (1990) (an attorney is charged with knowledge "that neither he nor his client should use the criminal process as an affirmative weapon to force or coerce payment of any debt, whether disputed or undisputed."). See Howard W. Brill, THE ARKANSAS LAW OF DAMAGES, 33-3 (3rd ed. 1996).

Despite the absence of an express prohibition in the Rules, an attorney may not threaten to file a disciplinary charge against the opposing attorney in order to induce an agreement to a settlement in a civil case. The attorney's higher obligation to the profession is defined by Rule 8.3(a). See American Bar Association Formal Opinion 94-383.

Even while engaged in standard attorney work, lawyers are subject to the limitations placed on debt collectors by federal law. In addition to a ban on misleading or abusive tactics, restrictions are placed on communications with the debtor and with third parties. See Janet Flaccus, Fair Debt Collection Practices Act: A Decade of Litigation, 1996 ARK. L. NOTES 23; Janet Flaccus, The Fair Debt Collection Practices Act: Attorneys Beware, You Too May Be a Debt Collector, 1987 ARK. L. NOTES 11.