Attending a Meeting with a Represented Party (United States)

This Wisdom of the Crowd (ACC member discussion) addresses whether lawyers can attend a meeting with their clients, when the opposing party's counsel is not present, under US law. This resource was compiled from questions and responses posted on the forum of the Small Law Departments ACC Network.*

*(Permission was received from the ACC members quoted below prior to publishing their forum comments in this Wisdom of the Crowd resource.)

Question:

My company is a commercial tenant and has recently had some issues with our landlord. As the issues became more contentious, I was asked to get involved. Recently the landlord's counsel sent us a letter of representation.

The management for our company and the management for the landlord have set up a meeting. My company has asked me to be present during the meeting, while counsel for the landlord will not present. I initially told my company's management that I could not attend the meeting as the other party is represented by counsel. Management has, however, been insistent that I be present even though I would presumably not be permitted to communicate with the other side.

Has anyone dealt with a similar issue? The scenario is concerning for me.

Wisdom of the Crowd:

• Response # 1: Well I would suggest you check why the other side's counsel will not be attending. If it is in hopes to leave legal out of this and come to a solution quicker/ cheaper, and is being done in good faith, your party may want to follow suit. Depending on the reason, it may be completely appropriate for you to be there though. If you attend, I would make sure that the other party, from the start, does understand that they have a right to representation and that your client is being represented. That is just my two cents though. Interested to see what others have to say.ⁱ

• Response # 2: Assuming your state uses some version of the Model Rules of Professional Conduct, go check out Rule 4.2 and associated notes. If you plan to attend, you must get consent of the other party and the attorney representing them.ⁱⁱ

• Response # 3: Maybe it's different in your jurisdiction, but model rule 4.2 allows communication with a represented party if you have consent of the other attorney. I think it would make sense to at least contact opposing counsel and discuss the meeting. Seems odd that opposing counsel can't even call in to a meeting between the parties.ⁱⁱⁱ

• Response # 4: I have been in-house counsel for over 30 years and am usually greeted by amazement when I raise this issue with the business people of a company for which I am working. My review of the issue, under the ethics requirement for Illinois lawyers seems clear in the case posed that where you know the other side is represented by counsel you cannot attend the meeting without approval of the other party's counsel or clear waiver of counsel by the other party. It becomes more murky where you have reason to suspect that the other side may be represented by counsel or you know that the other party has counsel, such as their own in-house counsel, but there is no indication that such counsel is engaged in the matter that forms the basis of the meeting that you plan to attend. Most murky of all for me, and I have not looked into it, is in personal matters where you are representing yourself and you have reason to believe the other party to your personal dispute may be represented by counsel in the dispute with you.^iv

• Response # 5: DO NOT ATTEND THIS MEETING! I might not even attend if the other party's counsel said it was OK. To follow [Response #4], just because ethics are anathema to our non-attorney bosses, and they think it would be wonderful if you could use your attorney skills (read as skills of being a scrivener who somehow cleanses their activities when we do their bidding) to get one over on an unrepresented opposite party, do not get sucked in

• In my experience I have had opposing parties either accidentally or misguidedly call me. I immediately tell them I cannot speak to them, and cut them off. Then the first thing I do when I hang up is send an email to their counsel outlining the telephone call, explaining what was said, and letting opposing counsel know that you NEVER intended, or wanted this call to occur, and will take similar steps to avoid any contact with their client in the future.

• I worked in the collections business for awhile and would have individual defendants tell me that "their lawyer" said I was wrong etc. I immediately asked them who that counsel was, usually to find they were bluffing. I would then tell them that since they said they are represented so I will not speak to them, but will only speak to their counsel. Of course they became apoplectic because - much like our bosses - they had no concept of lawyers following ethical rules.

• Don't go to the meeting. Don't be on conference calls without the opposing counsel on the call. Do not have your client relay messages that are from YOU (as opposed to your client) to opposing parties.^v

• Response # 6: I suggest your duty to the other side is to notify them (in writing) that you will be present, and that since they are represented they should have their counsel at the meeting. If they choose not to show up with their counsel that is their problem. You have put them on notice. However, if they do show up, I would not communicate with them directly.

• Also, what would happen if they change their mind and show up with their counsel and you have decided to not be there? That is the last outcome you want.^vi