A defendant in a personal injury suit lost in arbitration and her lawyer sought trial de novo. The defendant sent an email to plaintiff’s counsel stating that she, as the party, did not want a trial and complained that her counsel and insurance carrier were continuing to defend the case.
What steps should a lawyer take when receiving such an email?
The relevant rule in Florida is Rule of Professional Conduct 4-4.2 (Communications With Persons Represented by Counsel): “…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 other lawyer consents.” In Florida, the Rule applies “even though the represented person initiates or consents to the communication” (see Rule Comments).
The facts described above occurred in Denise Engstrom v. Rebecca Harsten Goodman et al. Washington State’s rule 4.2 appears similar, if not identical, to the Florida rule. The court held that the lawyer should not have continued communications with the party (which included several steps of further communication, including getting the defendant to sign an affidavit). The court held the appropriate steps would be to cease communication as well as advise opposing counsel and/or inform the court.