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Did Clemens' Attorneys Violate Ethics Rules with Phone Conversation?

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Attorney Paul W. Schwarzenbart of the Madison, Wisconsin-based law firm Lee, Kilkelly, Paulson & Younger e-mails me a really interesting thought:

I am curious why no question has been raised (that I have seen anyway) as to whether Roger Clemens' attorneys violated attorney disciplinary rules by (apparently) engineering and participating in (by listening in) on the subject telephone conversation with Brian McNamee.

This conduct seems to skirt very close to the line of what is permissible under ABA Rule 4.2, which provides:

Model Rules of Professional Conduct. Transactions With Persons Other Than Clients Rule 4.2 (Communication With Person Represented By Counsel)

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.

Has there been any suggestion that this rule is implicated by the attorneys' conduct? (Perhaps it does not apply in TX and NY?) As a practicing attorney, the tactic strikes me as slimy, whether or not rising to the level of a technical violation.

Full post as published by Sports Law Blog on January 11, 2008 (boomark / email).