quincy
Senior Member
It could depend, tranquility, on whether AffyMom has an attorney for her harassment action, and on whether AffyMom's employer is a non-party witness to the harassment complaint she has filed, and on how the fact that the original email was sent using the employer's computer plays into it, and on how the attorney (if it was an attorney) identified himself to the employer, and on a whole lot of other facts and information not provided here. . . . .
. . . .which is why I have continued to say that whether an ethical rule was violated or not would depend on what was communicated via phone and fax to the employer.
As soon as an attorney knows that the party contacted is represented (and to know that he must inquire), the attorney runs into the Rules of Professional Conduct. It is impossible to know, without inquiry, whether the employer who was contacted is an adversary witness to the pending action, a witness to the pending action, or is represented by counsel merely to protect his own interests (the interests of which could arise since the email was sent via a company computer).
You have Rules 4.1, 4.2, 4.3, 4.4 and 1.13 that all may come into play. Whether they do or not is a question that I cannot answer, based on what little information AffyMom provided here.
However, it would be wrong to blanketly say that there has been no ethical violation.
When in doubt, New Jersey cautions all attorneys to use the script - with the attorney identifying who he is, who his employer is, who his client is, and the nature of and parties to the pending action and its adversarial character. And there should be a specific inquiry as to whether the person contacted is represented by counsel.
And, to throw a little extra in, Stengart v Loving Care Agency Inc, A-35-6-08T1, addresses the expectation of privacy in emails even when sent using a company computer.
If you want me to provide some relevant New Jersey case law addressing the Rules, I will post back.
. . . .which is why I have continued to say that whether an ethical rule was violated or not would depend on what was communicated via phone and fax to the employer.
As soon as an attorney knows that the party contacted is represented (and to know that he must inquire), the attorney runs into the Rules of Professional Conduct. It is impossible to know, without inquiry, whether the employer who was contacted is an adversary witness to the pending action, a witness to the pending action, or is represented by counsel merely to protect his own interests (the interests of which could arise since the email was sent via a company computer).
You have Rules 4.1, 4.2, 4.3, 4.4 and 1.13 that all may come into play. Whether they do or not is a question that I cannot answer, based on what little information AffyMom provided here.
However, it would be wrong to blanketly say that there has been no ethical violation.
When in doubt, New Jersey cautions all attorneys to use the script - with the attorney identifying who he is, who his employer is, who his client is, and the nature of and parties to the pending action and its adversarial character. And there should be a specific inquiry as to whether the person contacted is represented by counsel.
And, to throw a little extra in, Stengart v Loving Care Agency Inc, A-35-6-08T1, addresses the expectation of privacy in emails even when sent using a company computer.
If you want me to provide some relevant New Jersey case law addressing the Rules, I will post back.
Last edited:
