Role of Lawyers

Problem
Class #5
The Wilsons are an elderly couple represented by Attorney Allen. They have
retained Allen because they want to purchase the condominium next door to them
so that their adult children can be close to them when they visit and provide care
for their parents. The seller is represented by Lawyer Jess. The Wilsons have
learned directly from the seller that he is highly motivated to sell the condo quickly,
is not interested in getting the maximum amount possible, and would like to see the
Wilsons get the place for their kids. Despite this, Allen has noticed that ever since
the sellers lawyer, Jess, became involved, the negotiations have gotten very
adversarial and the purchase price has been driven up. Allen recently suggested to
Jess that she was not doing right by her client because, prior to her involvement,
the seller wanted the deal completed quickly and seemed very reasonable. Jess
replied that Allen should worry about his clients and she would worry about hers.
Allen is aware of an applicable ethical rule that prohibits lawyers from
communicating directly with opposing parties, such as the seller, without opposing
counsels consent. [Florida Bar Rule 4-4.2, set forth below] Allen has asked Jess if
she would allow the parties and their lawyers to meet together and discuss the
transaction. Jess refused to consent to such a meeting and stated that all of the
negotiations are going to be lawyer to lawyer until the parties reach agreement on
the purchase price.
Which of the following would you suggest Attorney Allen do next? Explain
your answer in light of the assigned readings.
A. Allen should prepare a letter addressed to Lawyer Jess and the seller
expressing the Wlsons desire to see the transaction completed quickly, on the
terms the parties previously discussed, and send copies of the letter to both Jess
and the seller.
B. Allen should suggest to the Wilsons that they should communicate with
the seller directly and find out if he knows what his lawyer is doing in the
negotiations.
C.
Allen should continue to negotiate the purchase price through
communications with Jess.
D. None of the above. If you choose this option, you must explain what you
would do instead.

Florida Bar Rules of Professional Conduct

RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED
BY COUNSEL
(a) In representing a client, a lawyer must 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. Notwithstanding the
foregoing, a lawyer may, without such prior consent, communicate with another's
client to meet the requirements of any court rule, statute or contract requiring notice or
service of process directly on a person, in which event the communication is strictly
restricted to that required by the court rule, statute or contract, and a copy must be
provided to the person's lawyer.

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Comment
This rule contributes to the proper functioning of the legal system by protecting a
person who has chosen to be represented by a lawyer in a matter against possible
overreaching by other lawyers who are participating in the matter, interference by
those lawyers with the client-lawyer relationship, and the uncounseled disclosure of
information relating to the representation.
This rule applies to communications with any person who is represented by counsel
concerning the matter to which the communication relates.
The rule applies even though the represented person initiates or consents to the
communication. A lawyer must immediately terminate communication with a person
if, after commencing communication, the lawyer learns that the person is one with
whom communication is not permitted by this rule.

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