One of the fundamental ethical rules for lawyers is that they are not supposed to communicate with opposing parties who are represented by counsel. Model Rule 8.4 at least implicitly extends this prohibition to paralegals as it prohibits attorneys from directing others from doing something they are not allowed to do.
But what about talking to an opposing attorney? Can a paralegal do that? If so, are there any restrictions on such communication? Here are our top tips for navigating the rules governing these sorts of communications, as well as some of the “street rules” that you can use to guide your actions.
Remain mindful of Model Rule 8.4
The first part of ABA Model Rule 8.4 is rather simple: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Subpart (a), emphasis added). Importantly, the Model Rules do not prohibit a lawyer from talking to opposing counsel. So, why even talk about Rule 8.4 here?
Well, unfortunately, there are lawyers out there who will seek to have a paralegal do their dirty work for them. For example, let’s say you’re a paralegal working for an attorney at a construction litigation firm. One day, that attorney asks you to call opposing counsel and act like you’re a civil engineer employed by the city to elicit information your boss couldn’t get from opposing counsel otherwise.
Rule 8.4(c) prohibits the lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” Do you see where I’m going with this? If your boss is prohibited from making that call to opposing counsel under false pretenses, they cannot work around the rule by asking you to do it. Just say no.
Opposing counsel is not your friend
Any litigator knows that some cases drag on for years. Over that length of time, opposing law firms can develop a sort of kinship with each other. In fact, some attorneys make a big production out of calling for “professional courtesy” between opposing firms. Watch out.
These are often the very same attorneys who seek to exploit that professionally courteous relationship. For example, they may frequently bypass the attorney on a particular matter, reaching out instead directly to a paralegal. Typically, they call with a very casual and congenial tone in their voice.
I don’t care how well you know the case, how much of a people-pleaser you are, or how much respect you have for opposing attorneys, do not send them anything without permission from your supervising attorney.
Know your limits
This tip is especially important when you’re in a new job. If you’ve worked for multiple attorneys in your career, you know that every single one has their own style and preferences. This is true when it comes to communications with opposing counsel. Some may want you to handle the bulk of the phone calls with opposing counsel. Others may prohibit you from having any direct contact. From the outset, communicate with each attorney about their expectations in this regard and then act accordingly.
Don’t engage in the unauthorized practice of law
By now, you know that Canon 3 of the NALA Code of Ethics prohibits paralegals from engaging in the unauthorized practice of law (various state and federal rules and regulations contain the same restriction for non-lawyers generally). This rule is easy to understand in the abstract but becomes a little more complex when you apply it to situations like communications with opposing counsel.
For example, if an opposing attorney can’t reach your boss but calls and asks you for an extension of time to file a reply brief, can you grant that extension? If the opposing attorney asks for your understanding of a case cited by your boss in a motion to compel, should you have that discussion? If opposing counsel is in another state and calls you for your interpretation of a local law, should you give it to her? The answers to these questions are up for debate, but the dilemma is clear.
Sadly, many of the above tips involve deceitful behavior by attorneys seeking to exploit your non-attorney status for their own gain. Most would never do that, but those willing to cross that line will be tempted to cross it often. Always have a good grasp of your firm’s expectations when it comes to communications with opposing counsel, and don’t ever be afraid to tell an opposing attorney, “I can’t talk about this until I speak with my supervising attorney.”