Engstrom v. Goodman - 166 Wash. App. 905, 271 P.3d 959 (2012)

Rule:

The rules of professional conduct prohibit attorneys from communicating with a represented party: In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order, Wash. R. Prof. Conduct 4.2. The purpose of Rule 4.2 is to prevent situations in which a represented party is taken advantage of by adverse counsel.

Facts:

An attorney representing a plaintiff in a personal injury action that was submitted to mandatory arbitration sought to strike the defendant's request for a trial de novo on the basis that the defendant did not give her attorney the authority to request a trial de novo. The attorney received an e-mail from the defendant in which the defendant stated she did not agree to a new trial and did not wish to be represented by her attorney. The attorney prepared a declaration for the defendant, which she signed, stating that she did not authorize or consent to the request for a trial de novo. Armed with the defendant's declaration and his own declaration, the attorney moved to strike the request for a trial de novo. After striking the declarations, the trial court denied the motion and sanctioned the attorney for communicating directly with the defendant, a represented party, in order to obtain declarations supporting the motion.

Issue:

1. Did the trial court abuse its discretion by striking defendant’s declarations?
2. Did the trial court err in denying the motion to strike the request for a trial de novo?

Answer:

1) No. 2) No.

Conclusion:

The appellate court found that as shown by the transcript of the oral ruling, the trial court correctly understood that granting a motion to "strike" did not have the effect of physically altering the documents or removing them from the file, Wash. Gen. R. 15(b)(7). By "striking" the declarations, the court merely declared them inadmissible as evidence, with the effect that they would not be considered in support of plaintiff’s motion to strike the request for trial de novo. The motion and order to strike the declarations were based on ex parte communications with a represented party, not the attorney-client privilege. Plaintiff did not argue that striking the declarations was an improper remedy for the violation of Wash. R. Prof. Conduct 4.2. According to the court, once a party has designated an attorney to represent the party in regard to a particular matter, the court and the other parties to an action were entitled to rely upon that authority until the client's decision to terminate it has been brought to their attention. Absent fraud, the actions of an attorney authorized to appear for a client were generally binding on the client. The requirement for filing by an aggrieved party is satisfied when an attorney filed a request for trial de novo on behalf of an aggrieved client. Thus, the filing of the request for trial de novo by defendant’s attorney was binding on defendant.