Opinion 488
Question Presented
Is it proper for an attorney to advise his client (a debtor) to contact the client's creditor to obtain a written statement of the client's account if the client does not inform the creditor that the client is represented by counsel and that the statement of account will be reviewed by the client's attorney? Would a different answer be required if the creditor had an in-house attorney?
An attorney is contacted by a purchaser of consumer goods under a retail installment contract regarding a potential breach of warranty and fraud claim associated with the purchase and potential improper or questionable late fees charged by a finance company which purchased the contract and the finance company's failure to timely credit payments on the contract.
An attorney-client relationship is formed and the attorney advises the client (the purchaser of consumer goods) of several options that might be available to the client and that the client should request a statement of his account from the finance company to determine the client's current account balance and to allow the client to make an informed decision as to which option to pursue.
The client then contacts an employee of the finance company and requests a written statement of his account but does not tell the finance company's employee that he has consulted or is represented by an attorney. The employee later prepares and sends the client a written statement of his account, which is delivered by the client to his attorney.
No litigation was pending between the parties when the client requested the statement of his account.
QUESTIONS
- If the creditor is not represented by an attorney, is this a prohibited communication by an attorney with an unrepresented person without disclosing his role as an attorney?
- If the creditor has an in-house attorney, is this a prohibited communication with a represented party without the consent of that party's attorney?
Rules 4.01, 4.02, 4.03 and 4.04 govern the conduct of attorneys in non-client relationships.
Rule 4.01 relates to the truthfulness of statements by an attorney to others. No fact presented indicates or implies that the attorney made or advised his client to make any false statement of fact or law to the employee of the finance company. Under the facts presented, it was not necessary to disclose to the finance company the fact that the client was represented by an attorney, to avoid making the attorney a party to a criminal act or assisting a fraudulent act perpetuated by the client. No criminal or fraudulent act was contemplated or perpetuated by the client or his attorney. Rule 4.01 was not violated under the facts.
Rule 4.02 prohibits an attorney from communicating or encouraging or causing another to communicate about the subject of representation with another person, organization or entity known by the attorney to be represented by an attorney. If read literally, this Rule seems to prohibit any direct or indirect contact by an attorney with any other person known by the attorney to be represented by an attorney, without the consent of the attorney for the other party, unless authorized by law to do so. Under the facts presented, the client was entitled to request the finance company to provide him with his account balance and a copy of a statement of his account. The fact that his attorney advised him to do so did not violate Rule 4.02, even if his attorney knew that the finance company had in-house counsel.
Rules 4.03 and 4.04 have no application under the facts presented.
No Disciplinary Rule was violated if the attorney advised the client only to request a statement as to his account balance and a written statement of his account, and bring it to him for review, regardless of whether the finance company had in-house or outside counsel, or no attorney.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 488 (1992)