rejecting counsel’s contention that he was “authorized by law” to contact the witness without her lawyer because he issued a subpoena, noting that “[s]uch a conclusion would minimize the attorney’s ethical obligation under the Rule and would create an exception that would threaten to swallow the Rule.”
How later courts described this case
- rejecting counsel’s contention that he was “authorized by law” to contact the witness without her lawyer because he issued a subpoena, noting that “[s]uch a conclusion would minimize the attorney’s ethical obligation under the Rule and would create an exception that would threaten to swallow the Rule.”
- holding that the professional obligation of an attorney to obtain consent before communicating with a represented “party” extends to a witness represented by counsel
- holding that deposing party outside of presence attorney violated ethical rules despite the fact the party consented to the deposition
- allowing an attorney to interview a non- management employee without the consent of counsel for a corporation that is the named defendant to a lawsuit
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
A. THOMAS MONCERET v. THE BOARD OF PROFESSIONAL
RESPONSIBILITY
Appeal from the Chancery Court for Knox County
No. 133879-3 Irvin H. Kilcrease, Jr., Chancellor
No. E1999-00545-SC-R3-CV - Filed July 27, 2000
This is an appeal from the Knox County Chancery Court, which affirmed a hearing panel’s ruling
that the appellant violated Tenn. R. Sup. Ct. 8, DR 7-104(A)(1) by deposing a witness that he knew
to be represented by counsel. We hold that the chancery court correctly determined that the term
“party” used in DR 7-104(A)(1) is not limited to the named plaintiff or defendant in a lawsuit and
may also include a witness who is represented by counsel. We further hold that the protection of the
Rule cannot be waived by the party but only by the party’s lawyer. Accordingly, we affirm the
judgment.
Direct Appeal; Judgment of the Knox County Chancery Court Affirmed
E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
ADOLPHO A. BIRCH, JR., WILLIAM M. BARKER, and JANICE M. HOLDER, JJ., joined.
A. Thomas Monceret, Knoxville, Tennessee, Pro Se.
William W. Hunt, III, Disciplinary Counsel, Board of Professional Responsibility of the Supreme
Court of Tennessee, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.
OPINION
The issue in this appeal is whether the appellant, A. Thomas Monceret, violated Tenn. Sup.
Ct. R. 8, DR 7-104(A)(1), which states in part that a lawyer shall not “[c]ommunicate or cause
another to communicate on the subject of the representation with a party the lawyer knows to be
represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer
representing such other party or is authorized by law to do so.” Id.
A three-member hearing panel of the Board of Professional Responsibility determined that
Monceret violated DR 7-104(A)(1) by issuing a subpoena and deposing a witness that he knew to
be represented by counsel. The Panel concluded that the witness was included in the term “party”
as used in the rule and that the issuance of a subpoena for a deposition did not satisfy the exception
“or is authorized by law to do so.” The Knox County Chancery Court affirmed both the hearing
panel’s ruling and its sanction of a private admonition.
After consideration of the record and authority, we conclude that the hearing panel and the
chancery court correctly determined that the term “party” is not limited to the named plaintiff(s) or
defendant(s) in a suit and may include a witness who is represented by counsel. We further conclude
that the evidence in this case supports the findings of the hearing panel and chancery court and
therefore affirm the judgment.
BACKGROUND
The appellant, A. Thomas Monceret, a lawyer practicing in Knoxville, successfully obtained
a judgment on behalf of his clients in a breach of contract suit against Frank Wankowski. Monceret
thereafter initiated enforcement proceedings when Wankowski failed to pay the judgment. In the
course of the enforcement proceedings, Monceret discovered that a business known as Financial
Intensive Care Corporation (FICC) engaged in collections work for Wankowski. Monceret caused
an attachment to issue against the accounts of FICC that were for the benefit of Wankowski and/or
his businesses.
Monceret issued a subpoena duces tecum seeking to depose Diane Mealer, an employee and
officer of FICC, and requesting FICC’s records regarding Wankowski and/or his businesses. The
deposition was initially scheduled for August 10, 1988. Prior to the deposition, an attorney
representing Mealer telephoned Monceret and asked that the deposition be reset to another date.
Monceret agreed and asked that Mealer’s lawyer contact him to reschedule the deposition. Although
Mealer’s attorney did not call to reschedule, Mealer appeared for the deposition without her lawyer
on August 10, 1988. According to Monceret, he discussed the absence of Mealer’s attorney with
Mealer before beginning the deposition, and Mealer elected to proceed in the absence of counsel.
Monceret began the deposition by asking numerous questions regarding the nature of
Mealer’s duties with FICC and the extent of her involvement with accounts collected for and monies
directed to Wankowski. Mealer, an executive vice president, stated that FICC engaged in
investment, consulting, and collection services. She was for the large part unable to answer
questions regarding Wankowski. She stated that she did not bring any business records to the
deposition despite the fact that Monceret had issued a subpoena duces tecum. She stated that the
records were not in her possession and not in the possession of FICC because they had been returned
to Wankowski and his attorney. When Monceret asked for further explanation, Mealer frequently
indicated that she did not understand the question or did not have the knowledge to answer the
question.
After several questions regarding Mealer’s involvement with collecting and depositing funds
related to Wankowski’s business, the following exchange took place:
Q. How long have you been in this type of business?
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A. Collecting? Since 1980.
Q. Just wherever the truth of the question is rather than play with it.
A. 1980. I am not playing with you, sir.
Q. You think it’s funny when you smiled and used the word, “collected?”
A. Well, I don’ t know what you–
Q. I asked the question, how long have you been in the business; how long have you
been in the business, Ms. Mealer?
A. If you are going to badger me, then we will reschedule this and I will have my
attorney here to do this–
Q. If you don’t sit here and answer these questions, I am going to ask the Judge to put
you in jail, ma’am.
A. That’s fine.
Q. You are under a court order to be here.
A. All right, sir.
Q. How long have you been in the business?
A. I refuse to answer.
Q. You do?
A. Yes, sir.
Q. The funds that you had in the banking account during the period of time that you
were paying Mr. Wankowski’s accounts, were those, were those checks paid from
the funds you collected on accounts receivable and the monies that were taken from
the Post Office Box only?
A. I refuse to answer.
Q. Is it futile for me to go forward and ask other questions; are you going to refuse to
answer those?
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A. The only thing I have to say for the record, if you care to keep badgering me, then I
should have an attorney here.
When the deposition ended, Monceret told Mealer that she was not dismissed and that she could not
leave the office. He also told Mealer that she could not use the telephone in his office and prevented
her from doing so.1
In its factual findings, the hearing panel described Mealer as “conversational” during the
deposition and not “literally responsive” to questioning. It described Monceret as “sarcastic and
condescending.” The Panel concluded that the term “party” as used in DR 7-104(A)(1) should be
construed broadly to include a witness who is represented by counsel and that Monceret violated the
rule by deposing Mealer. In rejecting Monceret’s argument that Mealer had waived the presence of
counsel, the Panel found that the Mealer revoked the waiver but that Monceret continued to ask
questions.
Monceret sought review of the hearing panel’s judgment by filing a petition for writ of
certiorari with the chancery court.2 The chancellor adopted the hearing panel’s factual findings and
conclusions of law and upheld the sanction imposed.
Monceret has now appealed to this Court. He argues that Mealer was a witness and not a
“party” to the proceedings as that term is used in DR 7-104(A)(1); that even if Mealer was a party,
she waived her right to the presence of counsel before the deposition began; and that even if Mealer
was a party, the subpoena and deposition was “authorized by law.” The Board maintains that a
“party” as used in the Rule includes any person who is represented by counsel; that even if Mealer
waived her right to the presence of counsel before the deposition, she revoked the waiver during the
course of the deposition; and that the disciplinary rule cannot be circumvented by issuing a
subpoena.
ANALYSIS
We begin our analysis by reviewing the disciplinary rule at issue in this case, DR 7-
104(A)(1), which states:
DR 7-104. Communicating with One of Adverse Interest. – (A) During the course
of a lawyer’s representation of a client a lawyer shall not:
1
According to the record, Monceret was acquitted of a criminal assault charge, and a civil action filed
by Mea ler was nonsu ited.
2
Pursuant to Tenn. Sup. Ct. R. 9 , § 1.3, a party may seek review of the hearing panel’s decision by filing
a petition for writ o f certiorari with the chancery co urt. See Tenn. Code Ann. § 27-9-101 (1 980). The judgment of the
chancery co urt may then b e appea led to this Co urt.
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(1) Communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a lawyer in that
matter unless the lawyer has the prior consent of the lawyer representing such other
party or is authorized to do so.
Id. The main function of the disciplinary rule3 is to preserve the proper functioning of the legal
system and to “prevent situations in which a represented party may be taken advantage of by adverse
counsel.” Wright by Wright v. Group Health Hosp., 691 P.2d 564, 567 (Wash. 1984). As stated in
the related ethical consideration, Tenn. R. Sup. Ct. 8, EC 7-18, “[t]he legal system in its broadest
sense functions best when persons in need of legal advice or assistance are represented by their own
counsel.” Id.
The initial question in this case deals with the meaning and scope of “party” as used in the
Rule. According to Black’s Law Dictionary 1122 (6th ed. 1990), “party” includes any “person
concerned or having or taking part in any affair, matter, transaction, or proceeding, considered
individually.” Id. Another source, however, contains multiple definitions of “party,” including: “a
person who participates or is concerned in an action, proceeding, plan, etc.,” and “either of the
persons or sides concerned in a legal matter.” Webster’s New World Dictionary 1037 (2d ed. 1980).
Accordingly, to the extent that the term is reasonably susceptible to more than one meaning, it is
ambiguous.
In a formal opinion released on July 28, 1995, the American Bar Association agreed that the
word “party” as used in the rule is ambiguous and stated that “[t]he key to resolving this ambiguity.
. . is consideration of the purposes intended to be served by the Rule.” ABA Comm. on Ethics and
Professional Responsibility, Formal Op. 95-396 (1995). The ABA observed that interests of
“protecting the client-lawyer relationship from interference by [adverse] counsel, and protecting
clients from disclosing privileged information that might harm their interests, are not limited to
circumstances where the represented person is a party to an adjudicative or other formal proceeding.”
Id. It concluded:
If the Rule is to serve its intended purpose, it should have broad coverage,
protecting not only parties to a negotiation and parties to formal adjudicative
proceedings, but any person who has retained counsel in a matter and whose interests
are potentially distinct from those of the client on whose behalf the communicating
lawyer is acting. Such persons would include targets of criminal investigations,
potential parties to civil litigation, and witnesses who have hired counsel in the
3
Tennessee adheres to the Mo del Cod e of Profes sional Resp onsibility, set forth in Tennessee Supreme
Court Rule 9. Tenn. R. Sup. Ct. 9. The counterpart to DR 7-104 in the Mod el Rules of P rofessional C onduct is R ule
4.2. Model Rules of Professional Conduct Rule 4.2 (1999). Thus, whether following the Model Code or the Model
Rules, virtually every jurisdiction ad heres to the eth ical principle a t issue in this case. E.g., Gregory G. Sarno,
Annotation, Communication With Party Represented by Counsel as Ground for Disciplining Attorney, 26 A.L.R.4th 102
(1983 & Supp. 199 9).
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matter. In sum, the Rule’s coverage should extend to any represented person who has
an interest in the matter to be discussed, who is represented with respect to that
interest, and who is sought to be communicated with by a lawyer representing
another party.
Id. (emphasis added) (footnotes omitted).
Other authority is in accord with the ABA formal opinion. One treatise on legal ethics states
that “although the matter is not entirely clear under the Code, probably DR 7-104(A)(1) . . . prohibits
contact with any represented person. . . .” Charles W. Wolfram, Modern Legal Ethics 611 (1986).
In other words, “[t]he lawyerism party sometimes refers only to parties in litigation but evidently is
here intended to refer broadly to any ‘person’ represented by a lawyer in a matter.” Id. at 611 n.33;
see also John Leubsdorf, Communicating with Another Lawyer’s Client: The Lawyer’s Veto and the
Client’s Interest, 127 U. Pa. L. Rev. 683 (1979).4
Similarly, a large majority of courts in a variety of circumstances, both civil and criminal,
have held that a “party” is not limited to a named plaintiff or defendant. As one court has said:
[W]e have no trouble concluding that the definition of “parties” under the rule is not
restricted to named parties in a lawsuit. The language of the rule suggests no
limitation on the word “party.” Instead, the rule prohibits communication “on the
subject on the representation” with a party that is represented by a lawyer “in that
matter.” The use of the words “subject” and “matter,” rather than “lawsuit,”
indicates that DR 7-104 applies to all transactions for which lawyers are hired and
cannot be construed to imply that its application is limited to cases where suit is filed.
In re Illuzzi, 616 A.2d 233, 236 (Vt. 1992); see also Hill v. St. Louis Univ., 123 F.3d 1144 (8th Cir.
1997) (rule applies to professor/employee where university is the named defendant); Wright by
Wright, 691 P.2d 564 (Wash. 1984) (rule applies to managing employees who worked for a
corporation that was the named defendant); Sarno, 26 A.L.R.4th at 108-11.
Accordingly, we conclude that the term “party” as used in DR 7-104(A)(1) is not limited to
the named plaintiff or defendant in a pending lawsuit. The language used in the rule does not limit
its applicability to named plaintiffs or defendants in a filed lawsuit. Moreover, the caption to the
Rule states “communicating with one of adverse interest.” Tenn. R. Sup. Ct. 8, DR 7-104 (emphasis
added). Finally, we agree with the above authority that the Rule must be interpreted consistently
4
Monceret relies upon Tennessee Formal Ethics Opinion 83-F-46 for the proposition that “a lawyer may
interview witnesses or prospective witnesses for opposing sides without the prior consent of opposing counsel.” Tenn.
Ethics Comm. Formal Op. 83-F-46 (19 83). This opinion, however, is in the context of allowing an attorney to interview
a non-management employee without the consent of counsel for a corporation that is the named defendant to a lawsuit.
It does not address an attorney’s interview of a witness who the a ttorney knows to have counsel on the subject of
representation.
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with the purposes of the Rule. As expressed in ethical consideration 7-18, which is the companion
to DR 7-104(A)(1), “[t]he legal system in its broadest sense functions best when persons in need of
legal advice or assistance are represented by their own counsel.” Tenn. R. Sup. Ct. 8, EC 7-18. We
therefore hold that an attorney may not communicate or cause another to communicate on the subject
of representation with a witness the attorney knows to be represented by counsel.
We now turn to the application of this rule to the facts of this case. The record clearly
supports the findings of the chancery court and hearing panel that Monceret knew that Mealer was
represented by counsel and that the deposition pertained to the subject of Monceret’s representation.
Monceret does not contest these findings, but rather, argues that Mealer waived her right to counsel.
The Board tacitly goes along with this position by arguing that Mealer withdrew her waiver near the
end of the deposition but that Monceret continued to ask questions.
In our view, the waiver argument in the context of DR 7-104(A)(1) is misplaced. First, the
language of the Rule specifically requires the consent of the party’s lawyer, and there is no indication
that the party alone may waive the protections of the Rule. This interpretation reflects that adopted
by the ABA in its formal opinion:
[The Rule] exempts communications if the lawyer representing the contacted person
consents; but the Rule says nothing about permitting the represented person to forego
the protection accorded him by the ethical responsibilities of the communicating
lawyer. This Committee concluded in Formal Opinion 108 (1934) that the anti-
contact rule does not contemplate such a waiver.
...
While the Committee recognizes that not allowing the represented person to waive
the Rule’s protection may be seen as paternalistic, it believes that [the] Rule requires
that result. Reflecting the concern that the represented person may not be in a
position to make an informed waiver of the presence of counsel, the Rule operates
to reduce the likelihood of the represented person in communications that might
ultimately prove harmful to her cause by imposing a strict ethical obligation on the
communication.
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396.5
An apparent majority of courts have followed this interpretation and have held that the Rule
is not waived simply because the represented person initiates contact or is otherwise willing to
communicate. United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); People v. Green, 274 N.W.2d
5
Similarly, the ABA opinion indicates that if a party informs the attorney that he or she is no longer
represente d by coun sel, the attorney m ust establish “rea sonable assurance” that the information is accurate. The most
effective way of d oing so is to co ntact the party’s lawyer. See In re News Am. Publ’g, Inc., 974 S.W .2d 97 (T ex. Ct.
App. 1998).
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448 (Mich. 1979); State v. Miller, 600 N.W.2d 457 (Minn. 1999); In re News Am. Publ’g, Inc., 974
S.W.2d 97 (Tex. Ct. App. 1998). As the Lopez court observed, “[t]he rule against communicating
with represented parties is fundamentally concerned with the duties of attorneys, not with the rights
of parties.” Lopez, 4 F.3d at 1462. In short, the ethical responsibility rests with the attorney and not
the layman.
In light of this authority, we reject Monceret’s contention that even though he did not consult
with Mealer’s attorney, Mealer herself waived her right to the presence of counsel. Such a holding
would be inconsistent with the plain language and spirit of DR 7-104(A)(1). We likewise reject
Monceret’s argument that the issuance of a subpoena satisfies the “authorized by law” exception
found in DR 7-104(A)(1). Such a conclusion would minimize the attorney’s ethical obligation under
the Rule and would create an exception that would threaten to swallow the Rule.
Accordingly, we conclude that the evidence does not preponderate against the judgment of
the chancery court upholding the hearing panel’s findings that Monceret violated DR 7-104(A)(1).
Having so held, however, we observe that several of Monceret’s contentions do bear consideration
in terms of mitigation. First, there was no authority in Tennessee to supplement or explain DR 7-
104(A)(1) at the time Monceret deposed Mealer.6 The ABA Formal Opinion relied on in this
opinion and by numerous other courts was not released until 1995, years after the events in this case.
Moreover, there is apparently no dispute that Monceret discussed the presence of counsel with
Mealer before the deposition and that Mealer elected to proceed without counsel. We conclude
nonetheless that Monceret knew that Mealer was represented by counsel and that this knowledge
triggered ethical responsibilities under DR 7-104(A)(1) irrespective of Mealer’s actions.
Accordingly, the private admonition, which is the least severe form of sanction, was appropriate.
CONCLUSION
We conclude that DR 7-104(A)(1) prohibits an attorney from communicating with a party
the attorney knows to be represented by counsel unless permitted to do by the party’s counsel. We
have further concluded that “party” as used in the Rule includes a witness who is represented by
counsel. Finally, we conclude that the evidence supports the findings and conclusions of the hearing
panel and chancery court that Monceret violated DR 7-104(A)(1). The judgment is affirmed. Costs
are assessed against the appellant, A. Thomas Monceret, for which execution shall issue if necessary.
____________________________________
6
This factor only warrants consideration in mitigation. The language in the Rule is sufficiently clear
to provide notice of what conduct is prohibited and does not rise to the level of a due process viola tion as alleged in
Monc eret’s brief on a ppeal.
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E. RILEY ANDERSON, CHIEF JUSTICE
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