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Emeritus Professor Michael Berch of the Sandra Day O'Connor College of Law at Arizona State University and Jessica Berch, an attorney and visiting associate professor at Southwestern Law School, have co-authored an article published in the Phoenix Law Review.
“May I have a word with you: Oops, have I already violated the no-contact rule?” explores the ethical duties of lawyers, especially Arizona lawyers, in navigating the often conflicting duties imposed by the duty of competent representation and the no-contact rule. The authors also analyze the language of the no-contact rule and the Arizona Court of Appeals case, Lang v. Superior Court, which interprets that rule with respect to employees.
The article begins: You have a new case. The opposing party is a company with dozens of current and former employees. You know you have a duty to competently represent your client and, to fulfill that duty, you would like to informally interview some employees. May you do so without running afoul of the ethical rules in general and the no-contact rule in particular? Conversely, if you choose not to conduct these interviews, have you failed to competently represent your client?
The article concludes that Rule 4.2 of the Arizona Rules of Professional Conduct, known in the profession as the no-contact or anti-contact rule, is ambiguous. “Because it is not altogether clear when a lawyer may contact other parties – including former employees falling within the Lang protection – we suggest that a lawyer navigate these issues with care,” the authors write.
To read the article, click here.
In a footnote, they also give a shout-out to Arizona Supreme Court Chief Justice Rebecca White Berch, wife and mother of Michael and Jessica, respectively, for “her helpful edits and comments. It should go without saying (but in case it does not, we will say it here) that this article does not necessarily express her views or those of the court.”
In addition to his emeritus status at the College of Law, Michael is an Honors Disciplinary Faculty member of Barrett, The Honors College at ASU. Since 1969, he has taught a wide variety of courses, including Federal Courts; Civil Procedure; Conflict of Laws; Law and the Regulatory State; and Professional Responsibility. He coached many of ASU’s winning Moot Court teams and has written extensively. A popular teacher, Berch has visited at numerous institutions and received many teaching honors, including the ASU Alumni Association Distinguished Teacher Award in 1990, the Maricopa County Bar Association Outstanding Teacher of the Year Award for 1992-93, and the ASU Law Alumni Distinguished Professor of 2001.
Jessica gained experience in constitutional law, class action defense, administrative law and corporate governance as a former associate in the litigation and appellate practices at the firm of Perkins Coie LLP. As a member of the firm’s investigations and white collar defense subgroup, she represented clients in connection with investigations by federal and state authorities regarding tax, securities and environmental issues. She has briefed cases and/or argued before the U.S. Supreme Court, U.S. Court of Appeals for the Ninth Circuit, and Arizona Supreme Court.