Cal. State Bar Formal Opn. No. 2011-181 — Implied Consent Under "No Contact" Rule

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2011-181
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ISSUES: May consent under the “no contact” rule of California Rule of Professional Conduct
2-100 be implied, or must it be provided expressly? If consent may be implied, how is
implied consent determined?
DIGEST: Consent under the “no contact” rule of California Rule of Professional Conduct 2-100
may be implied. Such consent may be implied by the facts and circumstances
surrounding the communication with the represented party. Such facts and circumstances
may include the following: whether the communication is within the presence of the
other attorney; prior course of conduct; the nature of the matter; how the communication
is initiated and by whom; the formality of the communication; the extent to which the
communication might interfere with the attorney-client relationship; whether there exists
a common interest or joint defense privilege between the parties; whether the other
attorney will have a reasonable opportunity to counsel the represented party with regard
to the communication contemporaneously or immediately following such
communication; and the instructions of the represented party’s attorney.
AUTHORITIES
INTERPRETED: Rule 2-100 of the Rules of Professional Conduct of the State Bar of California.1/
STATEMENT OF FACTS
Attorney A is conferring with her client (Client A) outside of court when approached by Attorney B. After
exchanging pleasantries regarding the weather, the following conversation takes place among Attorney B, Attorney
A and Client A:
Attorney A to Attorney B: “Do you really need to call my client’s mother to testify in court
tomorrow? It really seems unnecessary and abusive under the circumstances. I would ask that you
reconsider.”
Client A to Attorney B: “Yes, she’s quite elderly and it could be traumatic for her.”
Attorney B to Attorney A: “Look, I’m sorry, but unless you’re willing to be reasonable and settle, I
think she’s essential to my case. She’s a key witness to what happened.”
Client A to Attorney B: “You should leave my mother alone! She wasn’t even there that day and
doesn’t really know anything! Besides your client caused this whole mess!”
Attorney B to Client A: “Then we will see what your mother really knows tomorrow.”
Has Attorney B violated rule 2-100 by responding in the manner described above?
1/ Unless otherwise indicated, all rule references are to the Rules of Professional Conduct of the State Bar of
California.

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DISCUSSION
Paragraph (A) of rule 2-100 of the California Rules of Professional Conduct, entitled “Communication with a
Represented Party,” provides as follows:
While representing a client, a member shall not communicate directly or indirectly about the
subject of the representation with a party the member knows to be represented by another lawyer
in the matter, unless the member has the consent of the other lawyer. (italics added)
The Discussion to rule 2-100 provides an explanation of the purpose of the rule: “Rule 2-100 is intended to control
communications between a member and persons the member knows to be represented by counsel unless a statutory
scheme or case law will override the rule.” This is consistent with case law in California: “This rule [referring to a
predecessor to rule 2-100] is necessary to the preservation of the attorney-client relationship and the proper
functioning of the administration of justice. It shields the opposing party not only from an attorney's approaches
which are intentionally improper, but, in addition, from approaches which are well intended but misguided. The rule
was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney
from impeding his performance in such role.” (Abeles v. State Bar (1973) 9 Cal.3d 603, 609 [108 Cal.Rptr. 359]
(internal quotes and citations omitted). See also Bobele v. Superior Court (1988) 199 Cal.App.3d 708, 712 [245
Cal.Rptr. 144] (“[Predecessor rule to rule 2-100] operates to protect a represented party from being taken advantage
of by adverse counsel. . . . [T]he ultimate purpose of rule 7-103 is to preserve the confidentiality of attorney-client
communications.”).)
1. Consent of the Other Lawyer
Consent of the represented party is not sufficient. Rule 2-100 specifies that the consent of the other lawyer is
required in order for a member to communicate with a represented party about the subject of the representation.
(See also ABA Formal Opn. No. 92-362 (offering party’s lawyer not permitted to communicate with opposing party
about settlement offer absent consent of other lawyer or unless authorized by law).)
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2/
A common misconception is that the rule prohibits communication outside the presence of the other lawyer.
However, the presence of the other lawyer is not necessarily sufficient to satisfy the requirements of rule 2-100. The
rule specifies that the consent of the other lawyer is required in order for a member to be permitted to communicate
with a represented party about the subject of the representation. (Rule 2-100, paragraph (A).3/) Similarly, copying
the other lawyer on correspondence is not necessarily sufficient—the rule requires consent. (See, e.g., AIU Ins. Co.
v. The Robert Plan Corp. (2007) 17 Misc.3d 1104(A) [851 N.Y.S.2d 56] (citing Niesig v. Team I (1990) 76 N.Y.2d
363 [558 N.Y.S.2d 493]) (concluding that sending a letter to the directors, even with a copy sent to the company’s
counsel, violated New York DR 7-104); ABA Informal Opn. No. 1348 (offering party’s lawyer not permitted to
send opposing party carbon copy of settlement offer sent to opposing party’s lawyer).)
2. Applicability of Implied Consent
Rule 2-100 itself does not specify whether the requisite consent must be expressly given by the other lawyer, or
whether the requisite consent may be implied by the facts and circumstances surrounding the communication with
2/ While California has not adopted the ABA Model Rules, they may nevertheless serve as guidelines absent on-
point California authority or a conflicting state public policy. City & County of San Francisco v. Cobra Solutions,
Inc. (2006) 38 Cal.4th 839, 852 [43 Cal.Rptr.3d 771]. Thus, in the absence of related California authority, we may
look to the Model Rules, and the ABA Formal Opinions interpreting them, as well as the ethics opinions of other
jurisdictions or bar associations for guidance. Rules Prof. Conduct, rule 1-100(A) (Ethics opinions and rules and
standards promulgated by other jurisdictions and bar associations may also be considered). State Compensation
Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656 [82 Cal.Rptr.2d 799].
3/ Nonetheless, the presence of the opposing lawyer may be a mitigating factor. See discussion below. (See also
Wright v. Group Health Hospital (1984) 103 Wash.2d 192, 197 [691 P.2d 564] (“the presence of the party’s attorney
theoretically neutralizes the contact.”).)

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the represented party, and we are aware of no California case addressing this issue. We conclude, for the reasons
described below, that consent under rule 2-100 need not be express, but may be implied.
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4/
Implied consent is often recognized under the law in the State of California. See, e.g., Cal. Penal Code, § 261.6
(“Consent” is defined as “positive cooperation in act or attitude. . . .”); People v. Jo Wilkinson (1967) 248
Cal.App.2d Supp. 906, 908 [56 Cal.Rptr. 261] (“In finding that the appellants did not have consent [to enter the
property of another], we are mindful of the fact that consent can be implied as well as express. . . .”); People v. Wm.
D. Noland (1948) 83 Cal.App.2d Supp. 819, 821 [189 P.2d 84] (recognizing that, in connection with a violation of
the Vehicle Code, waiver of the right of way may “be inferred from circumstances indicating an intent to waive.”);
Thompson v. City of Louisville (1960) 362 U.S. 199, 205 [80 S.Ct. 624] (recognizing implied consent as a defense to
criminal loitering); People v. Linda Fay York (1970) 3 Cal.App.3d 648, 654 [83 Cal.Rptr. 732] (a criminal law case
relating to issues regarding unlawful entry and search, “hotel employees have the implied permission of a guest to
enter a rented room for janitorial or maid services.”) (italics added; citing United States v. Jeffers (1951) 342 U.S. 48
[72 S.Ct. 93]). (See also People v. Wash Jones Williams (1992) 4 Cal.4th 354 [14 Cal.Rptr.2d 441]; People v. John
Z. (2003) 29 Cal.4th 756 [128 Cal.Rptr.2d 783].)5/
We also note the existence of certain interpretive opinions in California which suggest consent under rule 2-100 may
be implied. See Cal. State Bar Formal Opn. No. 1993-131 (citing Milton v. State Bar (1969) 71 Cal.2d 525, 534 [78
Cal.Rptr. 649]) (rule 2-100 anticipates that counsel who is present can correct errors in opposing counsel's
communications, thus implying that conversations where clients are present can occur. See also Los Angeles
County Bar Assn. Formal Opn. Nos. 472 & 490 (suggesting that when an attorney receives a communication on
behalf of the client, and chooses to deliver the communication to the client, “consent to the communication may be
implied;” further, where the receiving attorney can control the timing of the delivery of the message, can comment
on the communication, and can suggest an appropriate response, such communication does not threaten the values or
dictates of the rule). See also Jorgensen v. Taco Bell Corp. (1996) 50 Cal.App.4th 1398, 1401 [58 Cal.Rptr.2d 178]
(“Rule 2-100 should be given a reasonable, commonsense interpretation . . .”) (internal quotes and citations
omitted)).
Authorities in other jurisdictions outside of the State of California recognize implied consent under ethical rules
comparable to rule 2-100. (See, e.g., Assn. of the Bar of the City of N.Y. Com. on Prof. and Jud. Ethics, Formal
Opn. No. 2009-1 [http://www.nycbar.org/ethics/ethics-opinions-local/2009-opinions/787-the-no-contact-rule-and-
communications-sent-simultaneously-to-represented-persons-and-their-lawyers] (“consent may be inferred from the
4/ Even though we conclude that consent under rule 2-100 may be implied, we do not mean to suggest that the consent
requirement of the rule be taken lightly nor that it is appropriate for attorneys to stretch improperly to find implied consent.
Further, even where consent may be implied, it is good practice to expressly confirm the existence of the other attorney’s
consent, and to do so in writing. (See Washington State Bar Association, “Ethics and the Law: Communicating with a
Represented Governmental Client,” by Barrie Althoff, WSBA Chief Disciplinary Counsel (June 2001): Rule 4.2 of
Washington's Rules of Professional Conduct “does not require that consent be written, but in good practice it should
be, preferably signed by the opposing lawyer, or at least by sending a writing to that lawyer confirming his or her
consent. Given the purpose and strictness of the rule, it is highly perilous to engage in otherwise prohibited
communication solely in reliance on an ‘implied’ consent of the opposing counsel. A lawyer doing so should
immediately seek written ratification from opposing counsel, but recognize that counsel may not at all agree such
consent was implied.” See also Association of the Bar of the City of New York Committee on Professional and
Judicial Ethics, Formal Opinion 2009-1, http://www.nycbar.org/ethics/ethics-opinions-local/2009-opinions/787-the-
no-contact-rule-and-communications-sent-simultaneously-to-represented-persons-and-their-lawyers: “To avoid any
possibility of running afoul of the no-contract rule, the prudent course is to secure express consent.”)
5/ See also Health Maintenance Network v. Blue Cross of So. California (1988) 202 Cal.App.3d 1043, 1064 [249
Cal.Rptr. 220, 220] where the Court found that the client had impliedly consented to the subsequent adverse
representation by its former attorney: “[A] client or former client may consent to an attorney's acceptance of adverse
employment and such consent may be implied by conduct.” Health Maintenance Network v. Blue Cross of So.
California, supra, 202 Cal.App.3d at p. 1064 (emphasis added and citations omitted). Note, however, that this case
involved neither attorney discipline nor disqualification and the Court applied case law applicable with respect to
certain predecessor rules to rule 3-310 [Avoiding the Representation of Adverse Interests]. We do not mean to
suggest consent under rule 3-310, which expressly requires informed written consent to certain conflicts of interest,
need not be express and in writing.

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conduct or acquiescence of the represented person’s lawyer”); Rest. (Third) of Law Governing Lawyers
§ 99, cmt. j. (a lawyer “may communicate with a represented nonclient when that person’s lawyer has consented to
or acquiesced in the communication. An opposing lawyer may acquiesce, for example, by being present at a
meeting and observing the communication. Similarly, consent may be implied rather than express, such as where
such direct contact occurs routinely as a matter of custom, unless the opposing lawyer affirmatively protests.”). See
also Assn. of the Bar of the City of N.Y. Com. on Prof. and Jud. Ethics, Formal Opn. No. 2005-4 (although the
Association was unwilling to recognize implied consent under the facts presented in this opinion, the inquiry itself
suggests the lawyer could have engaged in conduct from which consent could be implied); Tex. Atty. Gen. Opn. No.
JC-0572 (Nov. 5, 2002) (referencing the Texas disciplinary rule: “[c]onsent may be implied as well as express, as,
for example, where the communication occurs in the form of a private placement memorandum or similar document
that obviously is intended for multiple recipients and that normally is furnished directly to persons, even if known to
be represented by counsel.”).)
3. Relevant Factors
For the reasons stated above, we conclude that consent under rule 2-100 need not be express, but may be implied.
Such consent may be implied by the facts and circumstances surrounding the communication with the represented
party. Such facts and circumstances may include those set below. None of the factors below individually are
necessarily determinative of whether consent has in fact been implied. Rather, an examination of all facts and
circumstances surrounding the communication with the represented party is necessary to determine whether consent
may be inferred.
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· Whether the communication is within the presence of the other attorney. Presence gives the other
attorney the opportunity to correct errors in such communication and otherwise protect the attorney-
client relationship. (See Cal. State Bar Formal Opn. No. 1993-131.) Presence also gives the other
attorney the opportunity to expressly object to such communication, thereby negating an implication of
consent.
· Prior course of conduct. Prior conduct between the attorneys, whether in connection with the pending
matter or other matters, may be indicative of implied consent.
· The nature of the matters.6/ Tacit consent to communications with a represented party may be found
more often in transactional matters as compared with adversarial matters. Under certain
circumstances, for example, transactional matters may be more collaborative or neutral than litigation
matters. As a result, based on the totality of the facts and circumstances, the nature of the matter may
be a relevant factor.
· How the communication is initiated and by whom. Consent may be implied by the fact that the
attorney invited the communication with his or her client or otherwise facilitated such communication.
In addition to the factual scenario of this opinion as set forth above, common contexts where consent
may possibly be implied include email correspondence from an attorney to an opposing attorney which
includes the attorney’s client as a copied recipient, thereby facilitating a communication by the
opposing attorney by use of the “Reply to All” email function. (See Assn. of the Bar of the City of
N.Y. Com. on Prof. and Jud. Ethics, Formal Opn. No. 2009-1, supra (“We agree that in the context of
group email communications involving multiple lawyers and their respective clients, consent to ‘reply
to all’ communications may sometimes be inferred from the facts and circumstances presented.”).)
· The formality of the communication. The more formal the communication, the less likely it is that
consent may be implied. For example, whereas under the proper circumstances, a “Reply to All” email
communication might be acceptable, copying the represented party in a demand letter to the other
attorney would be difficult to justify.
· The extent to which the communication might interfere with the attorney-client relationship. Among
factors weighing against implied consent are the likelihood that the represented party may: (a) make
6/ Rule 2-100 is not limited to a litigation context. See Discussion to rule 2-100: “As used in paragraph (A), ‘the
subject of the representation,’ ‘matter,’ and ‘party’ are not limited to a litigation context.”

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an admission or reveal confidential or privileged information; (b) be persuaded by the communication,
reach certain conclusions or form certain opinions as a result of the communication; or (c) question the
advice or ability of his or her attorney.
· Whether there exists a common interest or joint defense privilege between the parties. The existence
of a common interest or joint defense privilege between the parties may be indicative of an implicit
understanding that the attorneys be permitted to communicate with both parties.
· Whether the other attorney will have a reasonable opportunity to counsel the represented party with
regard to the communication contemporaneously or immediately following such communication.
Where, for example, the communication is unilateral, coming from the other attorney to the
represented party, and if such party’s attorney has the opportunity to promptly dispel misinformation
and otherwise counsel the client, there may be little impact on the attorney-client relationship and
administration of justice.
· The instructions of the represented party’s attorney. Certainly consent should not be inferred where
the attorney expressly withholds such consent and/or instructs the other attorney not to communicate
with his or her client.
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APPLICATION TO THE FACTS
Applying these principles to our factual scenario, we conclude that Attorney A provided implied consent, and
therefore the communications described therein do not violate rule 2-100.
We conclude that consent may be implied by the fact that Attorney A initiated the substantive conversation
regarding the litigation between Client A and Client B, by asking Attorney B (in the presence of Client A) about the
need to call a witness in the case. By doing so, Attorney A invited the communication. In further support of our
conclusion, we note that Attorney B’s communication is in direct response to Attorney A’s inquiry and that Attorney
A did not intercede and stop the communication.
CONCLUSION
We conclude that consent under rule 2-100 may be implied. Such consent may be implied by the facts and
circumstances surrounding the communication with the represented party. Such facts and circumstances may
include the following: whether the communication is within the presence of the other attorney; prior course of
conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the
communication; the extent to which the communication might interfere with the attorney-client relationship;
whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will
have a reasonable opportunity to counsel the represented party with regard to the communication
contemporaneously or immediately following such communication; and the instructions of the represented party’s
attorney.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of
California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors,
any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.
[Publisher’s Note: Internet resources cited in this opinion were last accessed by staff on November 9, 2011. Copy
of these resources are on file with the State Bar’s Office of Professional Competence.]

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