Law Practice Essentials

When dealing with people on the other side of the file, first determine if a lawyer represents them. If a person is represented by a lawyer in respect of a matter, another lawyer must not, except through or with the consent of that person’s lawyer, approach, communicate or deal with the person on the matter, or attempt to negotiate or compromise the matter directly with the person (Code of Conduct, Rule 7.2-8). Be careful not to “reply all” to the represented person’s lawyer’s email that copied their client, as that may result in an unintended direct communication with the represented person.

There may be circumstances where the other person is partially represented under a limited scope retainer. In these situations, you may, without the consent of the lawyer providing limited scope legal services, approach, communicate or deal with the person directly on the matter unless you have been given written notice of the nature of the legal services provided under the limited scope retainer and the approach, communication or dealing falls within the scope of that retainer (Rule 7.2-9 of the Code). That said, rather than rely on the opposing party’s lawyer to advise you of the scope of their retainer, if you have any uncertainty, contact the lawyer to get written confirmation regarding their retainer. Until you have the lawyer’s confirmation, the best practice is to communicate only through the lawyer and not through the opposing party.

Keep in mind that Rule 7.2-11 of the Code sets out specific obligations when approaching an officer or employee of a corporation or other organization.

In all cases, please be respectful to the opposite party and try to both understand their position and voice that you understand their position to the party (or their lawyer). Recognizing the opposing position and projecting that recognition is the start to a sensible execution of your mandate.