33. Communication with another solicitor's client

1. In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless:
   1. the other practitioner has previously consented;
   2. the solicitor believes on reasonable grounds that:
      1. the circumstances are so urgent as to require the solicitor to do so; and
      2. the substance of the communication would not be unfair to the opponent’s client;
   3. the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom; or
   4. there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with communication.

Commentary

33.1 'No contact' rule

Subject to the exceptions below, a solicitor shall not communicate about the subject of the representation with a person the solicitor knows to be represented by another practitioner; the 'no contact rule.' The Law Institute of Victoria's 'Communicating with Another Practitioner's Client Guidelines'⁸⁵ is a detailed practice guide to the Rule. It is most often invoked when the contact is initiated by the client. If a solicitor is contacted by another solicitor's client, the solicitor must inform the client that they:

• cannot speak to them about the matter;
• cannot listen to what the client has to say; and
• can only communicate through the person’s own solicitor

and should immediately terminate the conversation and advise the client's lawyer.

Rationale. The rule is to protect the opposing party. "The lawyer may … secure damaging admissions, or access to privileged material, or undermine the opponent’s client’s trust in that person’s lawyer": Legal Services Commissioner v Bradshaw [2008] LPT 9, [26].⁸⁶ "It is also highly cognisant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing": Re Margetson and Jones [1897] 2 Ch 314, 318 – 319.

Examples. In Legal Services Commissioner v Hurley [2009] NSWADT 125 the NSW Administrative Decisions Tribunal found a solicitor guilty of professional misconduct for impersonating the solicitor acting for the opposing party in an attempt to obtain information for better discovery and expose deliberate withholding of discoverable documents.

Social media. To adopt a contemporary perspective, a solicitor would breach this Rule by becoming a 'friend' of another solicitor's client for example, using Facebook, Myspace etc. Further, to do so without disclosing the true purpose of the request may also involve a breach of the duty of honesty in Rule 4.1.2. See the QLS publication, 'Seven ethical sins in social media.' As to whether a solicitor's agent (such as an investigator or loss adjustor) may seek to 'friend' another solicitor's client, caution should be exercised. 

Absent judicial guidance as to Facebook etiquette, some assistance is offered by an opinion of the Philadelphia Bar Association (Opinion 2009-02, March 2009)⁸⁷ in which the view (albeit informed by a greater level of codification of the lawyer's responsibilities and duties) is offered that for a solicitor to make the friend request likely constitutes deception and misconduct, and that to request a third party to make the request for the solicitor's purposes (or otherwise make use of the information thereby obtained) would not insulate the solicitor from ethical responsibility for the conduct. 

Second opinions. Rule 33 does not preclude a solicitor from accepting instructions to provide a second opinion on a client's matter.

85 On rule 25 of the Professional Conduct and Practice Rules 2005 (Vic), the Victorian equivalent of Rule 33.

86 A case on the former Legal Profession (Barristers) Rule 2004 (Qld) r 55.

87 http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf