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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania 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 Pennsylvania Rule

Primary Pennsylvania References: PA Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

PA-R 4.1(a) is identical to MR 4.1(a). PA-R 4.1(b), however, differs from MR 4.1(b) in that the Model Rule prohibits a lawyer from knowingly failing to disclose a material fact to a third person when the disclosure is necessary to avoid "assisting" a criminal or fraudulent act, whereas the Pennsylvania Rule requires disclosure of a material fact when it is necessary to avoid "aiding and abetting" a criminal or fraudulent act. Pennsylvania adopted the Comment to MR 4.1.

4.1:102      Model Code Comparison

PA-R 4.1(a) is substantially similar to DR 7-102(A)(5) which provided that "[i]n his representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact." With regard to PA-R 4.1(b), DR 7-102(A)(3) provided that a lawyer shall not "[c]onceal or knowingly fail to disclose that which he is required by law to reveal."

4.1:200   Truthfulness in Out-of-Court Statements

Primary Pennsylvania References: PA Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 157, Wolfram 13.5

Rule 4.1 prohibits a lawyer from knowingly making a false statement of material fact or law to a third person. See Phila. Eth. Op. 95-5 (1995) (A lawyer who represented an executor of a will whom he knew had absconded with estate funds was advised not to complete an informal account for formal court adjudication and not to send the account to the beneficiaries if the client could not be persuaded to restore the funds); Phila. Eth. Op. 89-4 (1989) (Before distributing security deposit funds held in escrow pending the sale of client's business, lawyer was advised to consider Rule 4.1(a) in the context of advising the defaulting buyer that the funds had not yet been distributed, so as to afford the defaulting buyer or his counsel the opportunity to contest the issue of entitlement); Phila. Eth. Op. 94-8 (1994) (Lawyer required to return documents to third persons who provided the documents to Lawyer with the understanding that they would continue to be available to them), Although a lawyer generally has no affirmative duty to inform an opposing party of relevant facts, he or she must be careful not to make statements which have the potential to mislead. See Phila. Eth. Op. 93-6 (undated); In addition, where the potential to mislead third parties exists, a lawyer will generally be required to minimize the danger of a misunderstanding. See Phila. Eth. Op. 94-22 (1995) (A lawyer was permitted to contact an expert witness retained by counsel for an opposing party, but had to be careful not to imply that he was disinterested or to take advantage of the expert's misunderstanding of the situation in violation of Rule 4.1 and 4.3); Phila. Eth. Op. 89-18 (1989) (A lawyer/chairman of the board at a medical facility who proposed to send a letter to lawyers suggesting in-patient treatment at his medical facility as an alternative sentencing opportunity for DUI offenders was advised to be more specific as to whether a judge is enabled by law to sentence a DUI offender to rehabilitative treatment, since even though he was not acting as one, as an attorney he may not lead another attorney to create an unjustified expectation of the viability of a sentence alternative); Phila. Eth. Op. 94-11 (1994) (Subrogation unit attorney required to carefully and fully explain the nature of his relationship to the insurance company and the insurance company's relationship to the employer where there exists a danger of misunderstanding in the communications between the parties).

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

Primary Pennsylvania References: PA Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:203, ALI-LGL 117A, 151, Wolfram 12.6, 13.3

A lawyer must disclose a material fact when necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless such disclosure is prohibited by PA-R 1.6. Rule 4.1(b). See, e.g., Pa. Eth. Op. 95-01 (1995) (An attorney representing a defendant in a homicide investigation who discovered the murder weapon pursuant to information provided by the client, could be considered aiding and abetting a criminal act in violation of Rule 4.1(b) if he chose to send the weapon for DNA testing before turning it over to the district attorney). However, the lawyer is under no affirmative obligation to inform the opposing party of a mistake or relevant fact if the omission does not aid or abet a client's fraud; Phila. Eth. Op. 94-21 (1994) (Where lawyer represented worker's compensation claimant who had been incarcerated, lawyer could not actually lie about the clients whereabouts, but if the lawyer determined that the client committed no crime by not disclosing his whereabouts, the lawyer did not have to affirmatively disclose his location under Rule 4.1(b)). See also Pa. Eth. Op. 93-51 (1993) (Lawyer for claimant under Pa Medical Profession Liability Catastrophe Loan Fund had no affirmative duty under Rule 4.1 to inform the fund of client's death). In spite of the absence of an affirmative duty to disclose an error, misstatement or relevant fact, generally a lawyer should encourage his or her client to correct the error. See Pa. Eth. Op. 88-69 (undated) (Even though the lawyer was under no obligation to disclose an error relied upon by the judge in computing the amount of misappropriated funds because the incorrect information was not provided by the lawyer or the client, the lawyer should encourage his client to allow the lawyer to inform the court). However, if misstatements or lies occur, the lawyer must be careful not to affirm or incorporate the false statements. See, e.g., Phila. Eth. Op. 88-24 (1988); In certain cases, client fraud can cause a conflict of interest for the lawyer or otherwise force the lawyer to withdraw from representation. See, e.g., Phila. Eth. Op. 95-11 (1995) (Where lawyer who represented a bank and individual as co-guardians of an estate subsequently learned that the individual had used estate funds to pay his own personal bills, he had an obligation to disclose this action if asked directly by the bank or the court, was required to withdraw from representing the bank, and should have withdrawn from representing the individual co-guardian); Phila. Eth. Op. 88-7 (1988) (Where lawyer discovered that his clients lied on forms submitted to the Social Security Office, he would be aiding and abetting their past criminal and fraudulent conduct if he could not convince them to disclose such conduct and continued to represent them in front of the Social Security Administration. If the conduct was both criminal in the future and past, the lawyer could disclose it under PA-R 1.6(c), and would be required by PA-R 4.1 to withdraw is he chose not to disclose).

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

The Pennsylvania Rule is exactly the same as the MR 4.2, and Pennsylvania adopted paragraphs one, three, and four of the Comment to MR 4.2.

4.2:102      Model Code Comparison

The Pennsylvania Rule is substantially identical to DR 7-104(A)(1) except for the substitution of the term "person" for "party."

4.2:200   Communication with a Represented Person

Primary Pennsylvania References: PA Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:301, ALI-LGL 158-162, Wolfram 11.6.2

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

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

In United States v. Batchelor (E.D. Pa. 1980) an Assistant U.S. Attorney's interview of the defendant without obtaining prior consent of counsel violated the prohibition against ex parte contacts under DR 7-104(A). Because the interview worked to the defendant's probable detriment at trial, the defendant was entitled to a new trial. In United States v. Veksler (3d Cir. 1995), cert. denied (1996) questioning of an employee of a corporation under criminal investigation was proper since the employee could not be imputed to be represented by counsel merely because the corporate employer under criminal investigation was represented by counsel.

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

[The discussion of this topic has not yet been written.]

4.2:240      Communication with a Represented Government Agency or Officer

In the Comment to Rule 4.2, an exception to Rule 4.2 is permitted for a "party to a controversy with a government agency to speak with government officials about the matter." Comment to PA-R 4.2. For instance, in an attempt to resolve the matter outside of the legal process, a lawyer representing clients before a welfare hearing board was permitted to contact higher ranked department officials who had more authority than the hearing officer. Pa. Op. 93-209 (1993). However, this exception does not create an absolute right of communication with government officials. In Pa. Eth. Op. 95-5 (1995), a lawyer representing a township board of supervisors was permitted to advise the client not to talk to the opposing party, notwithstanding the exception to Rule 4.2 that permits a party to speak to government officials about a controversy because the exception is not an entitlement, especially when the government official is a named defendant in the suit.

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

The prohibition of ex parte contacts with a represented party seems to extend to closely related parties to the matter. See, e.g., Waller v. Kotzen (E.D. Pa. 1983), appeal dismissed (3rd Cir. 1984) (discussion of a settlement with the defendant's insurer without first contacting the defense counsel violated the prohibition against ex parte contacts); Phila. Eth. Op. 88-30 (1988) (a party's lawyer may not discuss the subject of the representation with the non-lawyer agent of the opposing party who is acting with the express, implied, or apparent authority of his principal, even if the agent initiates contact with the lawyer, without opposing counsel's consent); Pa. Eth. Op. 88-238 (undated) (holding that lawyer may not communicate with secretary of adverse party to warn her of penalties of perjury).

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

Rule 4.3(a) of the Pennsylvania Rules of Professional Conduct parallels the first sentence of MR 4.3. Rule 4.3(c) of the Pennsylvania Rules of Professional Conduct is substantially similar to the second sentence of MR 4.3 but provides that the lawyer "should" attempt to correct a misunderstanding as to his or her role in the matter, whereas the Model Rule provides that the lawyer "shall" attempt to correct such a misunderstanding. Rule 4.3(b) of the Pennsylvania Rules of Professional Conduct adds a provision that "[d]uring the course of a lawyer's representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client." Pennsylvania adopted the Comment to MR 4.3.

4.3:102      Model Code Comparison

PA Rules 4.3(a) and (c) have no counterparts in the Model Code. PA Rule 4.3(b) is substantially similar to DR 7-104(A)(2).

4.3:200   Dealing with Unrepresented Person

Primary Pennsylvania References: PA Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 163, Wolfram 11.6.3

See also 4.2:200. Rule 4.3(b) of the Pennsylvania Rules of Professional Conduct prohibits a lawyer from giving advice to an unrepresented person whose interests are or may be in conflict with the interests of the lawyers client. As such, an attorney should be careful when advising others, on behalf of his or her client, that criminal or civil remedies will be pursued. Such statements should be limited to the client's intentions, and such threats should be capable of being carried through. See Phila. Eth. Op. 89-17 (1989) (Counsel for car leasing company could notify lessee that criminal remedies would be pursued if the car was not returned, but it would be improper for him to advice the lessee that his conduct was in fact criminal); Phila. Eth. Op. 88-20 (1988) (Advice that a criminal prosecution will be pursued, when it is not in the exclusive control of private counsel is inappropriate). The prohibition against giving advice not only extends to an opposing party, but to other parties or witnesses with potentially conflicting interests. See, e.g., Phila. Eth. Op. 89-16 (1989) (lawyer could not give advice to co-defendant, even though case had settled because law suit was still pending and there was a possibility of liability from one to the other); Pa. Eth. Op. 94-48 (1994) (lawyer could not give advice to the witness if his client's interests could potentially be in conflict). In spite of the prohibition against giving advice, a number of opinions have held that in certain circumstances a lawyer must advise a party of his or her legal rights. For instance, a lawyer can take a deposition of an unrepresented defendant, but the lawyer should advise the party of her rights to have counsel and to read and sign the transcript. This advice should be placed on the record. Pa. Eth. Op. 92-105 (1992). In another situation, a Pennsylvania Bar Association opinion directed prosecutors to advise crime victims, who are witnesses, that they may decline to discuss any aspect of the case, because the prosecutor represents the Commonwealth of Pennsylvania and not the victims. Prosecutors must also avoid making threatening statements to witnesses. Pa. Eth. Op. 89-120 (undated). If the lawyer is uncertain if the unrepresented party has conflicting interests with the lawyer's client, the lawyer should still be mindful of Rule 4.3(b), keep all contact to a minimum, and possibly warn the party of a potential conflict. For instance, a lawyer who represented a client in a worker's compensation case also discovered that the client might also have a medical malpractice claim. The lawyer could contact the surgeon, but only to obtain medical records for the worker's compensation case. Before any other communication occurred, the lawyer was required to warn the surgeon that he might be a defendant in a malpractice action. Pa. Eth. Op. 93-156 (1993). Finally, if a lawyer learns of information that might be useful to an unrepresented party with conflicting interests, the lawyer must also be careful of disclosing that information. For instance, a lawyer who learned that plaintiff in an action the lawyer was defending was HIV positive, was advised not to disclose this information to plaintiff's paramour who was also a witness in the action. Without disclosing the identity of the plaintiff, the lawyer could notify the department of health of her concerns, or the lawyer could petition the court to notify the infected individual's partner after giving notice to plaintiff's counsel. Pa. Eth. Op. 93-115 (1993).

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

PA-R 4.4 is similar to the Model Rule, but does not contain the prohibition that a lawyer "shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person."

4.4:102      Model Code Comparison

DR 7-106(C)(2) provides that a lawyer shall not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provides that a lawyer shall not "take . . . action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." DR 7-108(D) provides that "[a]fter discharge of the jury... the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror . . . ." DR 7-108(E) provides that "[a] lawyer shall not conduct . . . a vexatious or harassing investigation of either a venireman or a juror."

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Pennsylvania References: PA Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 163, 166, 167, Wolfram 12.4.4

Pennsylvania Rule 4.4 is much more limited than its counterpart in the Model Rule and in other states, but it still imposes an obligation on lawyers while they are collecting evidence, particularly evidence which is confidential. See e.g. Phila. Eth. Op. 89-2 (1989) (Lawyer could not use illegal or improper means to obtain evidence which had been placed under seal by judicial order); Pa. Eth. Op. 93-135 (1993) (In seeking to impeach a witness, a lawyer was not permitted to accept his expert's offer to examine the witness's statutorily confidential psychiatric records, even though the records were maintained at the expert's institution); Phila. Eth. Op. 94-22 (1995) (Lawyer advised to use care in contacting the opposing party's expert witness to the extent that the expert witness was in possession of confidential information); Phila. Eth. Op. 95-13 (1995). (Lawyer could not accept settlement offer conditioned on a stipulation that the client's expert witness received confidential information to produce his expert report).

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

[The discussion of this topic has not yet been written.]

4.4:220      Threatening Prosecution [see 8.4:900]

Using threats of criminal prosecution in a civil matter is generally permitted in Pennsylvania as long as three conditions are met: (1) the lawyer must make a good faith effort to determine that the criminal remedies apply to the party's conduct, (2) the lawyer must ensure that the client intends to pursue these remedies, and (3) the lawyer must not imply or suggest that the lawyer or the client, rather than the district attorney controls the issuance of criminal complaints. Pa. B.A. Comm. on Legal Ethics and Prof. Resp., Op. 91-55 (mentioning first requirement); Phila. B.A. Prof. Guid. Comm., Op. 89-17. However, one ethics opinion in Pennsylvania has taken the opposite stance, stating that letters from lawyers that threaten criminal prosecution are "inappropriate and that the tenor of the Rules prohibit them" because the "issuance of a private criminal complaint is not in the exclusive control of private counsel." However, a letter stating that the client might seek legal redress or institute a legal proceeding against the debtor would be permitted. Phila. B.A. Prof. Guid. Comm., Op. 88-20; see also Pa. B.A. Comm. on Legal Ethics and Prof. Resp., Op. 89-120 (prosecutors may not make threatening statements to witnesses).