In a decision by the Iowa State Supreme Court, Iowa Supreme Court Attorney Disciplinary Board v. Box, 715 N.W.2d 758 (Iowa June 16, 2006),the court held that an individual who is represented by an attorney may not waive protections under the disciplinary rule prohibiting ex parte contact; only the attorney representing the individual may consent to a waiver.

Martha Hillard, an 80-year old widow who owned valuable farmland, consulted with attorney James M. Box in the company of her brother and her niece’s son Todd (who were farming her land) to discuss a living trust and a will that she had previously executed. The next day Ms. Hillard and her niece consulted a different attorney, Orville Bloethe, and arranged for an amendment to the trust installment. The amendment granted to the niece a life estate in the farmland with the remainder to be divided equally among the niece’s four children, but if one of the niece’s children was farming the land, that child would have an option to purchase the land at fair market value. After that visit, Mr. Bloethe wrote to Mr. Box advising that Mr. Bloethe was representing Ms. Hillard and that any communications with Ms. Hillard should go through Mr. Bloethe. The next month, Ms. Hillard’s brother and Todd again took her to see Mr. Box and Mr. Box prepared a contract for the sale of the farmland to Todd at about one-third of fair market value. Litigation followed, the contract of sale was rescinded, and Ms. Hillard amended the trust to delete Todd’s remainder interest and the option to purchase.

Before preparing the contract for the sale of the farmland, Mr. Box told Ms. Hillard that he had received Mr. Bloethe’s letter and that he should not be talking to her.  Mr. Box, Ms. Hillard’s brother, and Todd testified that Ms. Hillard “responded testily that she could speak to whatever lawyer she chose.”  By the time of the disciplinary hearing, Ms. Hillard’s memory of the second meeting with Mr. Box had faded but she maintained that Mr. Bloethe was her lawyer.

The attorney grievance commission found that Mr. Box had violated the Iowa version of Rule 4.2 of the ABA Rules of Professional Conduct, the so-called “no-contact rule,” which prohibits a lawyer from communicating about a particular matter with a person whom the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is otherwise authorized by law to make the communication.

Mr. Box appealed the commission’s finding and argued, among other things, that Ms. Hillard had waived the no-contact rule. The Supreme Court of Iowa rejected the argument, holding that a party alone may not waive the protection of the no-contact rule -- the rule requires the consent of the party’s lawyer, even if the party initiates the contact.  As the court put it, “the ethical responsibility rests with the attorney and not the layman.”  The court acknowledged that a party has the right to discharge a lawyer and seek advice elsewhere, but stated that any such discharge must be verified before a lawyer makes contact with a previously represented party, and suggested that Mr. Box should have called to verify whether Mr. Bloethe was still representing Ms. Hillard.

This article was prepared by Christine A. Williams, who is a Senior Benefits Counsel at Northrop Grumman Corporation.