I had the opportunity recently to make a legal ethics presentation to a group of regular people, i.e., people who were not lawyers. (It takes effort not to call them “nonlawyers.” I admitted that to them at the outset while acknowledging how egocentric the term sounds when lawyers use it to mean anyone else. Even physicians manage to give people a better sounding title than that — “lay people.”)
The topic requested was legal ethics for people who were not lawyers. I went with “15 Things You Might Not Know About Ethics Rules for TN Lawyers.” I tried to cover some of the more relevant aspects of how our rules can impact people who hire attorneys but, what I was most looking forward to was which ones garnered the most interest. Based on reading the room, the two aspects people seemed the most surprised/genuinely interested to hear were: (1) there are some conflicts lawyers confront that simply cannot be waived and about which the lawyer isn’t even supposed to ask the client for consent; and (2) if you are represented by an attorney in a matter, you don’t have the power to give the attorney on the other side of the matter permission to communicate with you, only your lawyer can approve that happening.
I suspect the surprise as to the latter stems from how RPC 4.2’s requirement for the consent of the other lawyer can come across as, at least, counter-intuitive if not downright dismissive of someone who is the principal in a principal/agent relationship. It helps though to explain the genesis of the concern as the risk of overreaching or shenanigans on the part of other lawyer and to explain that the client still ultimately has the power because she can instruct her own lawyer to grant the consent necessary.
I suspect the surprise with the first aspect though is a bit more telling about how many lawyers approach conflicts in modern practice. My guess is that there might be a handful of lawyers out there that also forget that RPC 1.7(b)(1) means that unless you can reasonably believe that you can still provide competent and diligent representation to affected clients despite the conflict you can’t even ask for consent.