Opinion 201502

Facts: In the course of representing a client in civil litigation, Lawyer A must serve a summons and complaint on the opposing party who is known to be represented. Court rules and statutes require personal service. Lawyer A knows that the opposing party is represented by Lawyer B, who has not agreed to accept personal service on behalf of her client. Lawyer A hires a process server to accomplish personal service on the opposing party. In order to accomplishing personal service efficiently, the process server contacts the opposing party directly to arrange a convenient time and place.

Question presented: Does the process server’s communication with a represented opposing party violate RPC 4.2, where personal service is required by law.

RPC implicated:

RPC 4.2 [n.1]
RPC 8.4(a) [n.2]
RPC 8.4(c) [n.3]

Short Answer: No, qualified.

Discussion:

In civil litigation, certain proceedings must be commenced by personal service. For example, to commence an action, the defendant must be personally served with summons and complaint.[n.4] Similarly, contempt proceedings generally require personal service of the papers initiating the proceeding on the person alleged to be in contempt. [n.5], [n.6]

Lawyers frequently employ independent process servers to accomplish the personal service required under the Civil Rules. Where the person to be served is not represented, service generally poses few problems under the RPC, as long as the process server’s communications with the unrepresented person are not false or misleading.[n.7] However, these personal service requirements under the Civil Rules can create tension with a lawyer’s duties under the RPC when the party to be served is known to be represented in the matter.

RPC 4.2 provides:

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.

In addition, RPC 8.4(a) provides that a lawyer may not violate the RPC through the acts of another. Consequently, a lawyer may not direct a process server to communicate with a represented party if such communication by the lawyer would violate RPC 4.2. [n.8] A communication with a represented person violates RPC 4.2 where that communication is about the subject of the representation and where no exception applies. Papers relating to the underlying civil action may be assumed to be “related to the representation.” Thus communication regarding service of such papers should also be treated as related to the representation and a proper focus of RPC 4.2. The three exceptions to the prohibition on communication with a represented party are (1) consent of the other lawyer, (2) authorization by law; and (3) authorization by court order. [n.9] Under the first exception, the opposing party’s lawyer (“opposing counsel”) may consent to the process server contacting the opposing party directly to effect service. Such consent may be given where the opposing party has not agreed to allow his lawyer to accept personal service on his behalf.

However, opposing counsel’s consent is not required where the rule allows another exception. The text of RPC 4.2 sets forth the exceptions, including consent of counsel, and the comments indicate that these exceptions are independent of each other: “a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.” [n.10] As a practical matter, communication with the opposing party is an unavoidable part of accomplishing personal service, even though personal service itself is not communication. Where personal service is required by statute or court rule, the statute or court rule provides independent legal authorization for the communication necessary to accomplish the mandated personal service. Accordingly, a lawyer may communicate directly with a represented opposing party in order to accomplish personal service without violating RPC 4.2, or direct a process server to do so without violating RPC 8.4(a). [n.11]

Nonetheless, it should be noted that the “authorized by law” exception that covers communication with a represented party for purposes of personal service does not extend beyond those communications required to accomplish personal service. For example, simply arranging a date and place to accomplish service does not violate RPC 4.2. But any comments or questions regarding the substantive issues in the matter are clearly beyond the scope of the exception and therefore improper under RPC 4.2.

While the exceptions to RPC 4.2 permit a lawyer to communicate directly with a represented party in order to accomplish personal service, it is strongly recommended that the lawyer refrain from such communication due to the increased risk of violating, or being perceived to violate, RPC 4.2 or another Rule. The risk of straying beyond the limited scope of the exception, and thereby engaging in prohibited communication, is exacerbated when a lawyer communicates directly with a represented party. The risk that the represented person to be served, or that person’s lawyer, will misinterpret communication that is intended to be merely procedural is similarly exacerbated when the person to be served is a party to the action. The safer course of action by far is to ensure that the lawyer neither communicates directly to the party, nor receives communication directly from the party, by engaging the services of an independent process server.

In the usual course of such an engagement, a lawyer often simply instructs the process server to accomplish service, leaving the details to the process server. However, a lawyer who directs a process server to communicate directly with a represented opposing party must take care that the directions do not go beyond the scope of the exception or risk violation of RPC 4.2 and 8.4(a).

Endnotes

1. RPC 4.2 – Communication with Person Represented by a Lawyer

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.

Comment
...

[4] [Washington revision] This Rule does not prohibit communication with a person represented by a lawyer or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a person represented by a lawyer who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

2. RPC 8.4 – Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
...

3. RPC 8.4 – Misconduct

It is professional misconduct for a lawyer to:
...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
...

4. RCW 4.28.080(15); CR 4(d).

5. See, e.g., King County Local Rule for Family Law (KCLFR) 17(a)(2).

6. While this opinion applies to personal service on a party, the same analysis applies to personal service on a represented non-party under CR 45.

7. See RPC 4.1(a), RPC 4.3, RPC 8.4(a),(c).

RPC 4.1 – Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3 – Dealing with Person Not Represented by a Lawyer

In dealing on behalf of a client with a person who is not represented by a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure the services of another legal practitioner, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

8. A communication with an opposing party violates RPC 4.2 when the opposing party is known to be represented. While a lawyer is under no duty to inquire, she may not ignore the obvious in determining whether an opposing party is represented. See RPC 4.2, cmt [8]; ABA Opinion 95-396; In re Carmick, 146 Wn. 2d 582 (2002). For the purposes of this discussion, the opposing party is known to be represented.

9. RPC 4.2

10. RPC 4.2, cmt [4].

11. Best practices may indicate that a lawyer should first request consent from opposing counsel before making direct contact with the represented opposing party. Conversely, practical concerns may render such a request ill-advised: for example where a lawyer suspects that a party might attempt to avoid service of a motion for contempt. Nonetheless, such concerns are outside the scope of this opinion and are not addressed herein.