Advisory Opinion:
2132
Year Issued:
2006
RPC(s):
RPC 4.2
Subject:
May an attorney who is also a shareholder in a corporation ask questions directly of corporation`s board of directors in an open public forum
The inquirer described himself as a shareholder in an Alaska corporation with its principal place of business in Washington State (Corporation). He also states that 1) he currently has a dispute with the Corporation over alleged financial regularities, 2) he has exercised his rights as a shareholder to inspect business records, and 3) he has a pending complaint pending with the Alaska Division of Banking and Securities. He has not instituted a legal action against the Corporation.
The inquirer states that he has been advised by counsel for the Corporation that he should not initiate further contact with the Corporation about the alleged improprieties, but should make all such communications through counsel, who represents the Corporation for the purpose of such claims.
The inquirer asks whether he can attend the annual shareholders’ meeting and address the Board of Directors concerning his disputed issues.
ANALYSIS:
The Committee’s response assumes that the inquirer seeks to communicate with the Board of Directors only 1) as an individual, not as a representative of the shareholders, 2) about matters that relate to interests that are common to all shareholders of the Corporation and 3) about matters that are not currently the subject of an individual dispute between the inquirer and the Corporation.
RPC 4.2 provides that:
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.
Given the assumptions set forth above, the Committee does not believe that RPC 4.2 prohibits the inquirer from communicating with the Board of Directors at a shareholders’ meeting. However, the Committee cautions the inquirer that a lawyer who acts in a pro se capacity with regard to a legal claim against an entity is subject to RPC 4.2. In re Haley, 156 Wn.2d 324. 333-39, 126 P.3d 1262 (2006). A corporation’s board members fall within a corporate counsel’s representation of the corporation for purposes of RPC 4.2. Wright v. Group Health, 103 Wn.2d 192, 200-02, 691 P.2d 564 (1984). Thus, the inquirer could be prohibited from communicating with members of the Board in an attempt to address his own legal issues with respect to the Corporation.
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