Three Calls While the Attorney Is Unreachable
Your supervising attorney is in depositions all week and has told you to “handle anything that comes up.” Three things happen on Tuesday. First, the liability adjuster for the defendant - who is represented by counsel of record - calls you directly and says, “Just between us, will your attorney take $40,000 on a $50,000 policy? I can have a check cut today if you say yes.” Second, your client's adult daughter calls, says her mother is “confused” and currently in the hospital, and demands that the entire file be emailed to her personal Gmail so she can get a second opinion. She adds that she has her mother's power of attorney. Third, a former client whose matter closed 14 months ago calls to ask whether the firm will represent her in a new dispute against the same defendant your current client is suing, and asks you to “remind me what the current client said in his deposition - I know you were there.”
1. How do you handle the adjuster's call?
Read the worked answer
Decline the conversation, then document it precisely.
On the call: be pleasant and immovable. “I can't discuss settlement; I'm not authorized, and you're represented by counsel. I'll pass your message to the attorney and have her get back to you through Mr. ___.” Do not say yes, no, or “probably.” Do not repeat a number back for confirmation. Do not say “between us.”
Why: Rule 4.2 bars a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by counsel, and a paralegal's communications are treated as the lawyer's under Rule 5.3. Whether a particular adjuster counts as a represented person varies by jurisdiction - some courts treat insurer employees as represented once counsel appears - so the safe course is universal: route it through counsel. The adjuster initiated the call, which softens but does not remove the problem.
Afterward: write a memo the same hour with date, time, caller, and verbatim quote; email the attorney a short summary; and send opposing counsel a neutral written note - “Your adjuster called me today at 11:40 about settlement. I did not discuss the case. Please direct further communications to our office through you.” That contemporaneous record is what protects the firm if the adjuster later characterizes the call differently.
2. The client's daughter demands the file. What may you release, and what must you verify first?
Read the worked answer
Release nothing today. Confidentiality under Rule 1.6 survives the client's hospitalization, and a power of attorney is not a master key to a law firm's file.
Verify, in this order:
- Does the client have capacity to direct her own representation? “Confused” from a daughter is not a clinical finding. A client in a hospital may still be fully competent.
- What does the POA actually say? Ask for a copy. Confirm it is durable, that it has not been revoked, and that its scope covers legal-representation decisions. Many general POAs do not.
- What does the client want? If she can speak, call her directly - not through the daughter - and ask whether she authorizes disclosure to her daughter and in what form.
Then: if the client authorizes it, get the authorization in writing (a signed note, a recorded call documented by memo, or an email from the client's own account), and send only what she authorized - a second opinion usually needs the pleadings, discovery, and medical records, not the attorney's work product or internal notes. If a valid POA covers this and the client cannot speak for herself, the attorney makes the disclosure decision.
Do not: confirm to the daughter that her mother is even a client until the attorney clears it, and do not send anything to a personal Gmail account without a documented client instruction.
3. How do you answer the former client's two questions?
Read the worked answer
Two separate refusals, handled in one call.
The deposition testimony: decline plainly and without apology. “I can't discuss anything from that file - I'm not able to talk about another client's case at all.” Do not confirm the client's name, do not characterize the testimony, do not say whether you were present. Confidentiality under Rule 1.6 continues indefinitely, and a paralegal's duty runs alongside the lawyer's under Rule 5.3. If she presses, offer the public record: “If a deposition was filed with the court, it's available through the clerk.”
The new representation: do not say yes, no, or “probably.” A former client's new matter against a party adverse to a current client triggers Rule 1.9(a) (substantially related matters), Rule 1.7 (current-client conflict), and Rule 1.10 imputation. Notably, a nonlawyer's conflict is generally not imputed to the firm the way a lawyer's is, so a screen may be available - but that is the attorney's analysis, not yours. Take her contact information, tell her the attorney will call to run a conflicts check, and do not create expectations.
Then: write a memo to the supervising attorney the same day describing both questions and your answers, so the conflicts check is documented before the attorney decides.