Ron Sokol is a Manhattan Beach attorney with over 35 years of experience. His column, which appears on Wednesdays, provides a summary of the law and should not be construed as legal advice. Email your questions and comments to RonSEsq@aol.com or write to him at Ask the Lawyer, Daily Breeze, 400 Continental Blvd, Suite 600, El Segundo, CA 90245. Most recently, Ms. Sit was ranked as a Leading Lawyer for China Financial Services: Contentious Regulatory by Chambers Greater China in 2022. Clients also commented in Legal500 Asia Pacific 2022 that “Maria can always grasp the key points of the problem quickly and accurately. She has strong business knowledge” and “is bilingual, responsive and able to provide our company with comprehensive legal services with high efficiency and quality. She is our preferred legal counsel. She was named “Highly Commended” in the Financial Times` Innovative Lawyers Asia Pacific 2020 report and individually awarded by the Financial Times for her significant achievements in a complex global fraud with full recovery for a client within 4 days, a feat described as “exceptionally rare” by a Hong Kong judge. In addition, Ms. Sit was named one of the Top 100 Women in Investigations by Global Investigations Review and nominated by the IFLR Women in Business Law Awards 2020 – Asia as one of the finalists in the Financial Services Regulation category. Ms. Sit was also recognized by IFLR1000 Women in Business Expert Guides 2022 for Financial Services Regulatory in Hong Kong.
I was also in that position and I oppose it for several reasons. The first is the “no-contact rule.” I have not investigated whether silent participation (i.e. being a “fly on the wall”) is covered by the rule. While the rule is to prevent one lawyer from spilling over into the other client, which doesn`t happen if you don`t speak, it seems to go against the spirit of the rule if you have a lawyer. In some jurisdictions, if you`re not sure if the other party has a lawyer, you may need to inquire. Second, if the client keeps asking you for advice on what to say and you start writing down your client`s remarks, it could be a problem if the other party has advice. You could cross the line by making your client your agent because you can`t let a third party do for you what you`re not allowed to do. The line between advice on communication between clients and managing specific communications is unclear, but there have been articles about these risks, so it is a recognized ethical risk.
There are indeed ethical issues when you have reason to believe that the other party is represented by a lawyer – whether they are in the room or not. I would not agree to stand still if the call involves outsiders. What does the group think of the same scenario when a company employee is sanctioned or questioned on the phone by a business executive to whom you give advice? 4 Are you considering filing an accident or medical malpractice lawsuit and do you want to know that if your case goes to trial, you can sit at the lawyer`s table with your lawyer during the trial? The instincts and legal evaluation [in another post] are correct. It is unethical to communicate with a represented third party without the consent of their lawyer. Without such consent, interception would be tantamount to receiving an abusive communication. While the conversation may not be recorded, wiretapping laws could hold the lawyer liable if his or her presence is not announced. Even if the third party was not represented or was not known to have representation, it still does not seem fair. Surely you would not want this done to you. On rare occasions, I have had hands-free conversations with another lawyer or someone who has information relevant to a dispute or transaction where a client representative or co-lawyer was also present. On these occasions, I always let them know who might be present at the conversation with me, even if the other person joining me is not expected to speak. 6 Maria Sit, Managing Partner of Dechert`s Hong Kong office, is Head of Asia and Global Co-Head of the firm`s White Collar, Compliance and Investigations practice.
She is a former in-house lawyer with the Hong Kong Securities and Futures Commission. Ethical issues aside, it`s really bad form for a corporate lawyer to be present on a conference call without informing the people on the other end of the line. You will be asked to engage in deception. I always tell our salespeople, etc. that when they have a call to find out the position of each person on the other team, because I am concerned about the very deception you are supposed to enter: the lawyer hiding in the room. If I were to learn that our company is being deceived in this way, we would be very opposed to forming or maintaining a business relationship because we consider our customers, suppliers and other people with whom we do business as our partners. Perhaps you should create a policy based on looking at this situation as if “the shoe is on the other foot. 1 My job is to protect my business. If my clients think something is going on that could create a legally charged situation, then I have a responsibility to know the facts. Of course, I cannot be an active participant if the other party does not have a lawyer present or, INFORMED that I am on the phone, does not waive their right to advice.
And I always have an ethical question, what I can say if the other party waives their right. But both as a business leader and as a consultant, I certainly have a right to know what`s going on. (We often tell the other side that I`m sitting, and they don`t mind, but that`s not the question of the original poster.) I do not believe that “third-party wiretap laws” (designed to protect both callers, not just one) prevent a representative of a company (my company) from having the company`s resources at his disposal. Nor do I think there is “deception” liable to prosecution. My boys get enough calls from people who use hands-free kits to make me believe the caller isn`t alone either. We are talking about BUSINESS calls. There is no reasonable expectation that BOTH parties will not want to protect themselves. Does the group that is following this thread a little late in the game think that businessmen should now ask if a lawyer from the other side is on the phone or ask for a roll-call vote to find out who is participating and their positions? That sounds a bit much. I have been involved in many calls where we do not even know if the other employees named in the tender are employees of the company, contractors or third parties. 11 This Wisdom of the Crowd, compiled from responses published in the Employment and Labour Law eGroup and the Litigation eGroup*, deals with the practice of counsel participating in calls with clients without announcing the presence of counsel on the call. In reality, however, it depends on the district in which the case is heard.
Several New York boroughs do not allow the victim to sit next to his lawyer at the lawyer`s table during the trial. In such cases, the victim must sit at the back of the courtroom or in the general lounge area, and only lawyers are allowed to sit at the lawyer`s table. ALL RIGHT. I am convinced of that. Thank you for being clear. I won`t do it again. And yes, my business people need to learn how to take notes when the call simply doesn`t happen, when the other party knows the lawyer is on the phone. 5 The answer is that it depends. Most people think they can sit at the board table because that`s what they see on TV and in movies. However, the reality is that it depends on the district in which your case is tried.
For example, in Queen`s County, Nassau County, and New York County, you are not allowed to sit at your lawyer`s table during your trial. A: Talk to the clerk about what the judge allows or ask him in open court. You certainly can`t let just anyone sit at the lawyer`s table. If you are a defendant and you represent yourself, you will sit there, but not the witnesses and friends. They sit in the courtroom gallery, although witnesses may be excluded from court until it is time to testify. Help us make statutory salaries more transparent. Get exclusive access to anonymized legal salary data. A trusted advisor, such as a paralegal who is your assistant, may be able to sit down with you. The courts show some reverence to laymen who accept the challenge of representing themselves, but I have said before and I will do it again (sorry): “He who represents himself has a fool for a client”. I have sometimes been asked to do this, particularly in discussions with a large company that could not work with a lawyer unless his lawyer was also present.
The greatest risk is that the lawyer is now a witness. But that`s another topic. 7 The removal or prosecution of a sitting president would unconstitutionally impair the ability of the executive branch to perform the functions assigned to it by the Constitution. Even if it turns out that it is not formally unethical to be a “fly on the wall”, if the truth comes out, the damage to reputation cannot outweigh the momentary gain of the first hearing of a conversation. Finally, I tell my clients to think about what would happen if it ever turned out that me or someone else was secretly on the phone. Think about what it looks like from a personal image and corporate perspective. This will make everyone involved look sneaky, dishonest and shady.