March 2005
Featured Disciplinary Case

Topic
The rule prohibiting a lawyer from communicating with a represented party in a matter does not prohibit an attorney who is contacted by that party from communicating with the party when the attorney is not involved in the matter.

Summary

United States v. Gonzalez-Lopez, 403 F.3d 558 (8th Cir. March 8, 2005). This is not a disciplinary case but it may be of relevance to lawyer regulators and ethicists. The Defendant, Gonzalez-Lopez, was charged with violating federal drug laws in the Eastern District of Missouri. His family retained a Texas attorney named John Fahle to represent him. Fahle entered an appearance at the detention hearing and arraignment. Shortly thereafter, Gonzalez-Lopez contacted California attorney Joseph Low to discuss the possibility of retaining Low to represent him in the criminal case. At Gonzalez-Lopez's request, Low met with him at the jail in Farmington, Missouri. Within ten days of this meeting, Gonzalez-Lopez hired Low. Low contacted Fahle and informed him that he too was representing Gonzalez-Lopez. Before this conversation, Fahle had heard rumors of Gonzalez-Lopez having retained additional counsel. Both Low and Fahle attended an evidentiary hearing before a magistrate judge. At this time, Low had not yet entered his appearance. Initially the magistrate judge permitted Low to participate in the evidentiary hearing based on Low's assurance he would file a motion to appear pro hac vice. At some point during the hearing, however, Low was accused of violating a rule restricting the cross-examination of a witness to one lawyer by passing notes to Fahle. This prompted the magistrate judge to rescind the provisional approval and Low was not permitted to participate in the rest of the hearing. Later, Gonzalez-Lopez asked Fahle to stop representing him and told Fahle he wanted Low to be his sole attorney. Low sought to appear pro hac vice, but the district court denied the motion. Next, Fahle filed motions for a continuance, to withdraw, and for a show cause hearing. In the motion for a show cause hearing, Fahle accused Low of violating Rule 4-4.2 of the Missouri Rules of Professional Conduct by communicating with Gonzalez-Lopez about the criminal prosecution without Fahle's permission, even though Low knew Fahle already represented Gonzalez-Lopez in the matter. According to Fahle, Gonzalez-Lopez would not cooperate with him because Low represented to Gonzalez-Lopez that Low was his attorney. A hearing was held on Fahle's motion for sanctions. At hearing, Fahle testified that Low had met with Gonzalez-Lopez without his permission. Low testified of having met and consulted with Gonzalez-Lopez, but only after having been telephoned by him. Low also testified he did not know Gonzalez-Lopez was already represented during this conversation and could not recall exactly when he learned Fahle was representing him. At one point during the hearing, Low testified Gonzalez-Lopez gave him Fahle's name but stated that he told Gonzalez-Lopez to contact Fahle himself. Low told him he would contact Fahle only after Gonzalez-Lopez worked things out with Fahle. At the hearing, the district court also heard evidence submitted by an Assistant United States Attorney who was prosecuting Gonzalez-Lopez. The AUSA presented evidence of allegedly similar conduct by Low in an earlier case, United States v. Serrano, which had been tried before the same district court judge. Low had, however, never been admonished, sanctioned, or threatened with sanctions in the Serrano case. After the hearing, the district court issued a memorandum and order imposing sanctions against Low and awarding Fahle attorney's fees. Low appealed the sanctions order. The Eighth Circuit reversed, finding that the purpose of Rule 4.2, as borne out by the Comments to the Rule, is to “protect a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation." ABA Model Rule. 4.2, Comment 1 (emphasis added). The comments further provide: "Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter...." ABA Model Rule 4.2, Comment 4. The ourt further noted:

“[T]he district court's interpretation of Rule 4-4.2 would prevent parties in litigation from freely consulting with outside attorneys to obtain additional advice about their cases, hire additional counsel, or even hire different counsel. In the context of criminal prosecutions, the district court's interpretation of Rule 4-4.2 unjustifiably interferes with the criminal defendant's qualified right under the Sixth Amendment to be represented by counsel of the defendant's choosing…. In sum, we hold Rule 4-4.2 does not prohibit an attorney who is contacted by a party to litigation from communicating with the party about the case without first obtaining permission from the party's existing counsel when the attorney is not involved in the matter. It is undisputed Low was not representing any party in the criminal prosecution when he and Gonzalez-Lopez engaged in discussions about the possibility of Low taking on the representation. We therefore reverse the order imposing sanctions against Low.”