The Lawyer’s Ethical Duty Not to Listen

Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.

Do not listen to a person represented by another lawyer.

A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)

Listening includes having other people listen.

Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”

Listening is still listening, even without asking a single question.

The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”

The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.

Unethical listening isn’t limited to dealing with represented parties.

Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.

2 thoughts on “The Lawyer’s Ethical Duty Not to Listen

  1. Jennifer,

    I enjoyed this informative post very much and find the premise of your blog intriguing, especially concerning the related ethical concerns.

    Over the years, I have read some of Deborah Tannen’s books on listening and admit I need to be better at it. But as Alan Jackson tunefully says, “I’m a work in progress.” And paraphrasing St. Augustine’s quote, most of us (even the occasional lawyer) tries to practice continence [and better listening] . . . “just not yet!” I guess we like the sounds of our own voices way too much!

    I wish you well! Thanks, for following, too, and I’ve reciprocated.

    With respect to ethical duties “not to listen,” they mirror the ethical duty not to disclose confidences — something I find happens too often, albeit mostly unwittingly. In a recent for instance, I was in court on Tuesday awaiting the judge and my eventual turn when unfortunately, I chose a seat in the row directly in front of two lawyers. One of them had no compunction to discuss her client’s case with her colleague — in a voice loud enough to be overheard two rows over. I tried not to listen and to shut out the unremitting rat-tat-tat discussion but was unsuccessful. So I found another seat and moved away out of earshot. Reminded me of kneeling in the confessional as a kid and having to put my fingers in my ears when either the penitent on the opposite side or the priest-confessor failed to whisper.

    Warmest regards,
    Mo

  2. Thanks for your comment, Mo. This blog is new and I am new to blogging, so your encouragement really means a lot.

    Your comment raises an issue I am mindful of throughout this process: listening is so closely related to speaking. The content on listening may perhaps help readers with their speaking as well, or – to your point – their need not to speak about client confidences where others can hear.

    Thanks again and I look forward to reading your blog.
    Jennifer

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