You have asked for an opinion based on the following facts: You are representing a defendant in a personal injury action. The plaintiff is claiming she cannot sell a product as a result of the alleged injuries she sustained. In her deposition, the plaintiff testified that her normal procedure for selling the product is through demonstrations like Tupperware and other such products. Your investigator has indicated that he would like to stage such a demonstration and film her participating in it. Afterwards, he would film her delivering the product.
Rule of Professional Conduct 4.2 provides that:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Rule of Professional Conduct 8.4a provides that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another (emphasis added).
Previously, the Committee addressed a situation on point with your inquiry in past Opinion 85-36. In that opinion, the Committee found that action similar to what you propose constituted a violation of Disciplinary Rule 7-104, which is identical with Rule 4.2.
In the situation at hand, you propose to violate Rule 4.2 through the acts of your investigator, which would constitute an additional violation of Rule 8.4a. Your proposed action is not simply one-sided surveillance of the plaintiff, but rather active direct communication and interaction with the plaintiff, in order to prejudice her present cause of action. The Committee cautions you not to engage in this conduct.
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