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Be Careful Who You Talk To

Published in Chicago Lawyer Magazine, July 2013
By Daniel R. Stefani

The Illinois Appellate Court First District recently issued a Supreme Court Rule 23 Order affirming a decision by the Honorable William S. Boyd in the Circuit Court of Cook County.  The case centered around whether an attorney-client relationship was established which prohibited an attorney from communicating with the opposing spouse during a divorce while that opposing spouse was represented by counsel.  It also centered on whether the attorney represented the litigant or was merely acting as a “third-party neutral” as defined by Rule 2.4(a) of the Illinois Rules of Professional Conduct of 2010.  This case, while having limited precedential value, reminds us all as attorneys that we must never lose sight of our ethical obligations even when presumably attempting to do a favor for our friends or family.

The Appellate Court held that the Circuit Court did not abuse its discretion by disqualifying respondent’s counsel based on the Court’s finding that respondent’s counsel violated the rule of professional conduct that prohibits communication with a person counsel knows to be represented by another lawyer.  Rule 4.2 of the Illinois Rules of Professional Conduct of 2010.  Justice Gordon specially concurred but based the decision on a violation of Rules 1.10, 1.2 and 2.4 of the Illinois Rules of Professional Conduct of 2010.

As an initial matter, it is important to note that the trial court found that the attorney that was disqualified did not act with any malice or intent to violate Rule 4.2.  In fact, from a reading of the facts of the case, the attorney appeared to have both parties’ best interests at heart by attempting to resolve their differences in their pending divorce and keep what little assets they had in the family versus paying attorneys to fight endless battles that they could not afford.  As they say, “no good deed goes unpunished.”

In any event, the attorney at issue was engaged to be married to the respondent’s sister.  The respondent asked the attorney’s fiancée to speak to her husband on her behalf regarding settlement of their pending divorce.  Said attorney spoke directly with the petitioner on the phone regarding the dissolution of marriage litigation.  The petitioner’s counsel was not privy to the phone conversation.  One week following said conversation, the respondent formally retained the attorney.  A month later, the petitioner filed a motion to disqualify the attorney and his firm from representing the respondent.  The petitioner argued that his interests had been compromised as a result of the phone conversation and the attorney’s subsequent representation of the respondent put the petitioner at a significant disadvantage because he had revealed his ultimate acceptable settlement options to the attorney.  The attorney and the respondent denied that any information was revealed that was not already communicated to the respondent by the petitioner but admitted knowing the petitioner was represented by counsel at the time.  The majority affirmed the trial court’s findings that the attorney had violated Rule 4.2 by representing the respondent in the divorce and communicating with the petitioner about the divorce despite his knowledge that the petitioner was represented by counsel.  Such finding was based primarily on the fact that the court found that there was an implied attorney-client relationship at the time of the phone call, even though said attorney was formally retained a week later.

The opinion also brought out some interest nuances in Rule 4.2 which states, in part: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer had the consent of the other lawyer who is authorized to do so by law or a court order.”

Interestingly, the Rule applies even if the represented person initiates or consents to the communication.  This is a very important nuance to Rule 4.2, especially in today’s age of electronic communication.

There is also an interesting discussion in the case as to when the formation of an attorney-client relationship occurs.  Clearly, a formal written agreement is not a prerequisite to the formation of an attorney-client relationship.  However, it is important to keep in mind that the relationship can be simply created during the initial contact between the lay person and the lawyer.  Herbes v. Graham, 180 Ill.App.3d 692, 699 (1989).  The formation hinges upon the putative client’s manifested intention to seek professional legal advice and his reasonable belief that he is consulting a lawyer in that capacity.  Contrary to other jurisdictions, Illinois courts do not require the putative client to show that he actually submitted confidential information to the lawyer.  King v. King, 52 Ill.App.3d 749, 753 (1977).  As such, we must also keep in mind that the attorney-client relationship can form in a relatively simple manner or casual conversation even though the attorney has no intention to be representing the putative client, especially in situations where the conversation is with a family member or friend.

Finally, the special concurrence reminds us of Rules 2.4(a) and 1.12(a).  Rule 2.4(a) states, in part: “A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.”

Rule 1.12(a) prohibits an attorney who has “participated personally and substantially” as a mediator or third-party neutral, from representing anyone in the same matter unless he obtains the informed consent of all parties.  We must remind ourselves, not only in the area of matrimonial law, but in a general practice, that what would seem to be innocent efforts as attorneys to resolve disputes could potentially qualify you as a third-party neutral and prohibit you from representing either side.  Again, the moral of the story is be careful when you feel like you are doing a favor.  The special concurrence found that the attorney at issue was a third-party neutral and was therefore precluded from representing either party unless the other party consented in writing which did not occur.  Interestingly enough again, proof of disclosure of specific confidential information as a third-party neutral is not required when the disqualification occurs under Rule 1.12.  In re WR, 2012 Ill.App.3d 110179, ¶34

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