Common Communication Problems (Part 2)
Communicating with people on the other side of the file
Before dealing with people on the other side of a file, determine whether they are represented by counsel. If the opposing party is represented by a lawyer, your communications are governed by rule 7.2-6 of the Code of Conduct. You must not communicate directly with a represented individual or attempt to negotiate a matter directly with a represented person – communicate with their lawyer.
There may be circumstances where the other person is partially represented. In these situations, the opposing limited scope counsel should inform you of the matters on which you should be communicating with him or her, and which matters the client is handling. Do not assume, however, that the limited scope lawyer is an effective communicator. If you are uncertain about the scope of the limited retainer, contact the lawyer and insist that they set out in writing the circumstances where it is permissible to contact the opposing party directly. Until you have that confirmation, your best practice will be to communicate with the lawyer. As always, document your communications.
In either case, show respect to the opposite party and try both to understand their position and voice that you understand their position to the party (or her counsel). Differences of opinion are our stock and trade. Recognizing the opposing position and projecting that recognition is the start to a sensible execution of your mandate.
Communicating with unrepresented parties
When you are dealing with an unrepresented or partially represented party, it is important for you to ensure that they understand that you are not their lawyer and that you are not protecting their interests; see rule 7.2-9 of the Code. Recommend to the unrepresented party that they obtain legal representation. It is especially important for you to explain to your client the protocol for dealing with unrepresented parties. Explain to your client that you must respond to communications from the unrepresented party, and that you will have to speak with the opposing party directly to discuss settlement and other matters.
You may find yourself dealing with an unrepresented party who sends you numerous communications in an effort to harass your client and increase your client’s legal costs. This situation could occur in a family law dispute. If this occurs, keep in mind that the purpose for responding in a timely manner to communications from the other party is to best serve your client and protect his or her interest. Do not ignore the communication, but consider whether it is appropriate for you to respond with a short communication (e.g., a two-line letter), advising the other party that you are in receipt of their communication and do not have instructions from your client at that time. Also keep in mind that you are not required to accede to unreasonable requests, or time limits, imposed by the other party.
It is critical to document your communications with unrepresented people. In addition, remember that you must avoid sharp practice and must not take advantage of slips or mistakes of the other party in carrying out your duties as a lawyer (rule 7.2-2 of the Code of Conduct), but this is especially so when dealing with unrepresented individuals for these reasons:
such tactics will be looked upon unfavourably by the courts and the Law Society;
the perceived benefits are illusory; and
such conduct has a negative effect on public perception.
The good habits you develop of responding to communications in a timely fashion; documenting communications, being civil, and keeping communications on topic, are equally applicable in dealing with unrepresented or partially represented individuals.