“A lawyer who serves
notice upon an adverse party in compliance with the provisions of a contract for
serving notices does not violate Rule 4.2.”
Restatement of the Obvious, §
101.
Every so often one encounters an argument so breathtakingly
and originally imbecilic that no legal authority exists to refute it. Whenever this occurred one of my former
partners bemoaned that the American Law Institute had never published a Restatement of the Obvious, with one or two additional adjectives, which
should not be repeated in a blog which strives for decorum, thrown in for good
measure. Such arguments are typically born
of desperation or profound ignorance of the law. While normally confined to substantive areas
of the law, such as contracts or torts, the law of lawyering is not immune from
this phenomenon.
In keeping with a tradition of providing lighter ethics fare
in the summer, I offer now the first installment of an occasional feature: The Restatement of the Obvious. Today’s installment is ripped from the pages
of a recent successful, though not particularly challenging, defense of an
attorney-client [1] to
a Request for Investigation (“RFI”) filed with the Colorado Supreme Court’s
Attorney Regulation Counsel (“OARC”).
The facts are these:
My client, who I shall call “Attorney X” (as in “X-asperated”),
represented a landlord in commercial lease negotiations with a company (“Tenant”). Tenant was represented in the negotiations by
competent counsel, “Attorney TC” (for “Tenant’s Counsel”).
The lease provided that “[a]ll notices, which Landlord or
Tenant may be required or may desire to serve on the other shall be in writing
and shall be delivered . . . addressed
as set forth in the Basic Lease Provisions . . . .” In turn, the Basic Lease Provisions provided
that notices by the landlord must be served upon Tenant with a “simultaneous
copy” to Attorney TC.
Approximately two years after its execution a dispute arose when
Tenant failed to pay its share of the building’s operating expenses. Tenant countered that the landlord had failed
to provide certain required maintenance services. The landlord declared a default and Attorney
X send a Landlord’s Notice of Default letter to Tenant and to Attorney TC, as
required by the lease.
building’s operating expenses.
The Notice of Default was utterly vanilla – it merely cited
the terms of the lease of which Tenant was alleged to be in default, Tenant’s
right to request an audit of its share of operating expenses, the landlord’s
right to recover interest on unpaid rent, the amount claimed due and owing on
the date of the Notice, and invited Tenant to invoke its right to conduct a
formal audit. Nothing more – no threats
of litigation or otherwise, no offers of settlement.
In response to the Notice of Default, Complainant, Tenant’s President, filed an “Ethics Complaint,” more formally known as a Request for Investigation, with OARC. Complainant’s letter to OARC stated in part:
I find it quite concerning that [Attorney
X] knew at the time, [sic] that I was represented by [Attorney TC], (as
evidenced by the [Notice of Default] letter co-addressed to [Attorney TC]), and
still he had the temerity to send both [Attorney TC] and I [sic] the default
letter simultaneously.
OARC notified Attorney X that a Request for Investigation
had been made alleging that Attorney X had “improperly contacted [Complainant’s]
company directly despite knowing that the company was represented by
counsel. The facts and circumstances set
forth by [Complainant] implicate Colorado Rule of Professional Conduct 4.2
(communication with person represented by counsel).” Attorney X was directed to respond within
twenty-one days explaining why he sent a letter directly to Tenant and Attorney
TC.
Whatever else lawyers may forget from their study of “Legal
Profession,” Rule 4.2 seems to be the lesson that sticks. Colorado has adopted the ABA Model Rule
verbatim:
In
representing a client, 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 or is authorized to do so by law or a court order.
Colo.
RPC 4.2 (Emphasis added). The
inapplicability of Rule 4.2 here is patent:
First, the lease both authorized and required notices of
default to be served upon Tenant “with a simultaneous copy to” Attorney TC. The notice provision, negotiated by Attorney TC,
constituted both a lease requirement and consent of Tenant’s counsel to this manner
of providing notice. Accordingly, the
“consent of the other lawyer” to service of the Notice of Default on Tenant was
implicit, if not express, under the terms of the lease.
Further, twelve days after the Notice of Default was mailed, Attorney X received a letter
from Attorney TNC (for “Tenant’s New Counsel”), establishing that Tenant was not represented by Attorney TC in connection with lease dispute. Having had no contact with Attorney TC in
connection with the lease in over a year, Attorney X did not “know” that Tenant
was “represented by another lawyer in
the matter,” i.e., the lease dispute, a condition to the
applicability of Rule 4.2. See Colo. RPC 1.0 (f) (“[K]nows “denotes
actual knowledge of the fact in question.”)
Thus, even if one could credibly argue that the lease terms only
authorized the landlord, and not its counsel, to draft and serve notices of default,
Rule 4.2 was inapplicable.
Having been apprised all the circumstances, OARC took no
further action, concluding in a letter to Complainant:
[Attorney X] notes in response . . . that
the [Notice of Default] was sent directly to [Tenant] with a copy to [Attorney
TC] because the underlying lease required such notice. To the
extent the lease authorized notice in this form, the contact cannot be found to
a Rule violation.
Further, [Attorney X] denies that at the
time [the Notice of Default was sent] he knew that you were represented by
[Attorney TC]. [Attorney X] notes that
another lawyer, [Attorney TNC], notified him that he was representing [Tenant]
with regard to the lease dispute, and subsequent to such notification all
communication has been through [Attorney TNC].
Contracts often include a provision prescribing the manner
in which notices are to be given. Such provisions
routinely state that notice must be simultaneously given to a party’s counsel. Some also include a mechanism for changing
the individual and/or address to which notice is to be given. However, I have never seen a notice provision
that expressly stated, or felt the need to state, that a required notice could be
given either by a party or its attorney. Perhaps in the absence of the Restatement of the Obvious, they should.
The terms of the lease in this case did not expressly
provide that the Notice of Default could be served by landlord’s counsel. However, a construction of Rule 4.2 which
would require a contract to expressly include such a provision would be
ludicrous. Taken to its illogical
conclusion, such a construction would also prohibit a party from receiving
assistance of counsel in drafting a contractually required notice, since such
assistance would be a violation of Colo. RPC 8.4(a), which prohibits
circumventing the Rules of Professional Conduct “through the acts of another.” Here, Attorney TC, if not Tenant, understood
that notices of default are drafted by lawyers, not their clients, and
consented in advance to this manner of service.
While a Restatement of the Obvious
would be useful in such situations, let us be thankful it was not needed.
[1] My client graciously consented to disclosing the facts of his case in the interest of advancing ethics education. See Colo. RPC 1.6(a).
