Kansas Supreme Court on the rule against direct communication with opponent’s clients

The Supreme Court of Kansas yesterday published a judgment — In the Matter of E. Thomas Pyle, III — which is interesting on a number of fronts. The first is that Pyle was disciplined for writing a letter which criticised an adverse disciplinary ruling against him. The second is that he was disciplined for failing to complain about an opposing lawyer having formed the view that the opposing lawyer had engaged in misconduct (but when he did belatedly complain, the complaint was apparently not made out). Victoria has just such a dob-in rule, but I have never before heard of any lawyer being disciplined for failing to report a colleague to disciplinarians. The third is that the lawyer was originally disciplined for breaching the rule against direct contact with his opponent’s client by facilitating his own client’s direct contact with the other side, a concept I have difficulties with. And the fourth is a cracker. Pyle was found to be a “Clintonesque” witness.

The Supreme Court of Kansas suspended a lawyer from practice for 3 months for writing a long letter to 280 contacts commenting on the adverse outcome of a disciplinary hearing, and characterising the relevant tribunal as corrupt. The decision considers at length the limits on lawyers’ right to free speech which are permissible in order to prevent prejudice to the administration of justice. The right to make comment backed up by proper factual basis in the public interest will be keenly preserved in America, while speech prompted by purely personal motives — as was the case here — will not be allowed because (i) it is desirable for the public to have confidence in the judiciary; (ii) the public tend to believe what lawyers say about judges and have little opportunity to distinguish between warranted and unwarranted adverse comment of that kind; and (iii) judges effectively have no right of reply.

The saga is interesting in another way. It began when a woman hurt her knee at her lover’s house. She hired a lawyer, Pyle, as you do in America. The homeowner admitted negligence by signing an affidavit prepared by Pyle, saying he had carelessly left something in the driveway for her to trip over, contrary to his customary daily practice of putting it away. The woman sued the homeowner, claiming at least US$300,000. The homeowner, by now the defendant, made a claim on his liability insurer. The insurer hired a lawyer to defend him.

At this stage, it will be obvious that the facts are not inconsistent with a con job by the two lovers on the man’s insurer, however the insurer did not deny indemnity, and nor apparently was there a clause excluding cover for liability to members of the public who happen to be your lover. So thoughts of a con job should be put aside in analysing the problem, and not allowed to infect our analysis.

The defendant told the woman (now the plaintiff) various things his insurer-appointed lawyer had said to him, and the plaintiff told her lawyer, Pyle. They included that the insurer-appointed lawyer acted for the insurer rather than the defendant, and that he always denied liability on behalf of insured clients, regardless of the facts. The defendant was not happy with the antics of his insurer- appointed lawyer — he continued to maintain his negligence, but the insurer-appointed lawyer kept on maintaining that it was all the plaintiff’s fault. The plaintiff asked Pyle to draft an affidavit to be sworn by the defendant deposing to what the defendant perceived to be his lawyer’s refusal to follow his instructions, and his lawyer’s preferral of the insurer’s instructions over his. Pyle drafted the affidavit as requested, and the plaintiff procured the defendant’s execution of it. She did so by direct communication in the absence of any lawyers and without the insurer-appointed lawyer’s knowledge, and gave it back to Pyle.

Then Pyle sent it with glee to the insurer-appointed lawyer, who terminated his retainer with the defendant, and filed a disciplinary complaint against Pyle for infringing the rule against direct communication with an opponent’s client. I must confess to some surprise that the disciplinary complaint was found made out against the lawyer, especially in circumstances where the relevant rule had been amended prior to the relevant conduct so as to omit that part which previously proscribed a lawyer from causing another to communicate with a represented opponent.

The parties themselves can always communicate with one another, relatively unorthodox as it may be for that to happen where they are represented, and it seems to me that what happened here, if the letter’s characterisation of the facts was more or less accurate, was simply that the solicitor assisted such a communication. According to the controversial letter, what he did was responsive to his client’s initiative, but I am not sure that that matters all that much in the determination of the question of whether the rule was breached (though it would be relevant to the question of what consequences should follow if it were found that the rule had been breached).

There is a back-to-frontedness about the result, to my mind. The parties are the players and the lawyers only their agents. Where the parties desire to communicate, no one can stop them, and nor should anyone be able to stop them despite the fact that as control freaks, the concept often horrifies lawyers. It is not the case, in my view, that there is a fine line between a solicitor doing the right thing by the rule against contact with an opponent’s client and using his client as a proxy to get around the prohibition. To characterise the lawyer as the principal and the client only as his agent — which is what is happening if you say the lawyer breached the rule through the proxy of his puppet of a client — would be to engage in muddle-headedness, for the disputants are the principal actors and the lawyers only their spokesmen. Not to allow the parties to speak freely amongst themselves is to restrict their freedom of speech.

The case of a lawyer hiring a private investigator or loss adjuster to speak with the lawyer’s unrepresented client is a different one. The Pyle decision makes clear that it is well accepted in America that lawyers cannot get around the prohibition on direct communications by hiring a puppet to do it for them, and I could not agree more. Indeed
American Bar Association Formal Opinion 95-396 states:

“A lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer herself would be prohibited from doing so. Whether in a civil or criminal matter, if the investigator acts as the lawyer’s ‘alter ego,’ the lawyer is ethically responsible for the investigator’s conduct.”

But there is a clear difference between a lawyer appointing an agent to do what he cannot do — a simple sham of the kind the law always finds a way around — and a lawyer facilitating that which is inherently kosher, namely disputants talking directly to one another. There could be no sanction if the plaintiff in this case had prepared the affidavit herself.

It is interesting (though perhaps irrelevant) to note that in neither decision does it appear to have been either alleged, or found, that the plaintiff pulled a swifty on her lover and signed him up to confessions he would not have made but for being induced to do so without taking advice from his solicitor.

I do wonder whether the greater prevalance of contingency fee arrangements in America has led the court to give lawyers rights in the litigation process which inform this decision, albeit in a not particularly open way.

Lest it be thought I endorse Pyle’s conduct unreservedly, I should say that what the disciplinarians should in my view have concentrated on was the first controversial letter Pyle wrote, in which he said to the defendant’s insurer-appointed lawyer — You have a conflict of duties; my client offers to settle for the limit of liability under the policy (US$300,000); if the offer is not accepted within 3 weeks, I will report your conflict of duties to the disciplinarians. I’m sure Kansas must have a rule against that.

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