Published May 2014 by Raul Novoa and Jessica Bober Rosenthal*
Great communication is just as an important trial skill as eloquence in an opening statement or the ability to think quickly on your feet during cross examination. Often we are able to accomplish more for our clients through good communication with opposing counsel because we achieve concession through diplomacy. It is disappointing to see the consensus among our judiciary and bar leadership is that we need rules requiring communication between lawyers. It is equally disappointing that the lawyers to whom these rules are designed to reach are missing out on the benefits they could be achieving for their clients and for themselves.
Let’s start with the basics:
- Judges do not like to conduct hearings on matters they believe the lawyers should work out themselves. No matter how right you think you are, a fact of life for our busy judges is they can’t always distinguish whose conduct led to the hearing to begin with. This is especially true with broad, unfocused discovery hearings. It is far better for you to resolve as many discovery issues as you can, so that any discovery hearing is focused on truly disputed issues. In fact, Local Rule 4 requires that an attorney confer with opposing counsel and try to resolve the issue before noticing a hearing on the uniform motion calendar.
- It is naïve to think that you will never need a concession from opposing counsel, either for an extension, for a discussion about a problem you are having on your end, or some trade off that benefits your client’s case on the merits.
- The Florida Bar’s Ideals and Goals of Professionalism and the Palm Beach County Bar Association’s Standards of Professional Courtesy provide that attorneys should endeavor to work together on discovery issues, to stipulate to all facts and legal authority not reasonably in dispute, to allow reasonable requests by opposing counsel for extensions, and to communicate with opposing counsel before scheduling depositions, hearings or other proceedings. This is simply a matter of extending professional courtesy to one another.
So what do you do if opposing counsel does not follow these professional guidelines and simply does not call you back?
We recently had this problem. Our firm had a case with multiple parties where one party’s involvement in a mediation and settlement conference was critical. The lawyer did not attend the mediation, did not return phone calls and did not respond to emails. The mediator and the rest of us were at wits end. The lawyer’s secretary was apologetic and would consistently say she had passed on the message and that she would do so again. In final desperation, we called a partner of the lawyer and simply said that we were afraid something was wrong. Soon after we heard back from the lawyer and over time we were able to resolve the case. Our dealings were never combative, never threatening and we never went to court.
It is unfortunate when lawyers take on combative attitudes. It makes small and big parts of cases impossible to resolve and makes the whole experience miserable for both sides. Developing an open line of communication often leads to concessions and compromise that otherwise would not have been accomplished. Even if you do not get the concession or compromise that you are looking for, you will want to get your hearing off to a good start. The best way to introduce your motion is to say, “Your honor, we have discussed these issues and narrowed our differences to a few select items, which I am prepared to discuss with you today.” That gets the judge believing that you are being reasonable and that you have areas of disagreement which are truly genuine.
Keeping these principles in mind, what do you do in the unique situation where you are trying to settle a case, but you suspect that opposing counsel has not conveyed the settlement offer to their client?
May you, without the consent of opposing counsel, contact the opposing party to convey the settlement offer? The answer is no. See R. Regulating Fla. Bar 4-4.2(a) (“[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 lawyer has the consent of the other lawyer.”) A lawyer who suspects that opposing counsel’s client is not receiving settlement offers may not transmit such information to the adverse party. See Fla. Bar. Comm. on Prof. Ethics Op. 92-362; see also ABA Formal Ethics Op. 92-362 (Even if a lawyer suspects a settlement offer was not communicated by the opposing counsel to the opposing party, the lawyer may not ask the opposing party whether the settlement offer was communicated.) Although you may not contact an opposing party directly, there is a solution.
Even though parties to a matter are represented by counsel, they may communicate directly with each other. If a client desires to communicate with the opposing party, you may be reasonably expected to advise or assist your client regarding those communications. Your client may also ask you whether he or she may lawfully communicate directly with a represented person without their lawyer’s consent. Such advice is appropriate provided you are careful not to overreach. See ABA Formal Op. 11-461; R. Regulating Fla. Bar 4-4.2 cmt. (“A lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make, provided that the client is not used indirectly to violate the Rules of Professional Conduct.”); R. Regulating Fla. Bar 4-8.4 cmt. (“Subdivision (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take, provided that the client is not used to indirectly violate the Rules of Professional Conduct.”)
What does this mean to you? Although you may advise a client concerning communications the client is legally entitled to make, you should be careful not to violate the underlying purpose of Rule 4-4.2 by overreaching. If you ever find yourself in this situation, you should advise your client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information. Being professional and courtesy with opposing counsel will get you farther and will allow you to be a better advocate for your client. Nothing good can be achieved by being combative and uncooperative. Always remember to take the high road even if others don’t follow.
* Both Mr. Novoa and Ms. Rosenthal are associates at Ackerman, Link & Sartory, P.A.