Well, This Is One Way To Blow Up An NDA
I’ve told this story before but it makes for a good setup here: Years ago, I represented a client in a reinstatement matter. The Office of Lawyer Regulation retained outside counsel for the referee hearing. Outside counsel sent me an email, and copied his contact within the OLR (also a lawyer). I “replied all.” The retained lawyer half-jokingly admonished me for emailing his client, a represented party, in violation of SCR 20:4.2.
Wisconsin does not have a formal opinion on the matter, but an Inside Track Dilemma article favorably cited a New Jersey opinion for the proposition that a lawyer, by copying their client on the correspondence, impliedly consents to the other lawyer responding with “reply all.” This makes sense; if a lawyer doesn’t want opposing counsel to reply in an email their client will see, they should not copy their client on the email in the first place.
What Rule 4.2 does not allow, and has never allowed, is a lawyer to actually go up to a represented opposing party, at her job, and play a confidence game to get the party’s cell phone number to drive a wedge between the party and her lawyer, and then pretend to be a “neutral” third party to broker a settlement and nondisclosure agreement, requiring forfeiture of the settlement plus $1,000 per day for breaching the agreement, which also contained illegal terms.
But, that’s what longtime Trump lawyer Alina Habba apparently did in 2021, according to Above The Law, when she allegedly induced a Bedminster Golf Club server to sign a non-disclosure agreement and settle a sexual harassment claim against the Club’s food and beverage manager. This came to light yesterday, as the server sued to void the agreement and refer Habba to the New Jersey ethics regulators.
The complaint is here, and toward the end there is a neat recitation of all of Habba’s potential ethical violations, ranging from conflicts of interest to making false statements of material fact, but the jumping-off point seems to be that meeting at the Club, where Habba was a member.
Rule 4.2 doesn’t prohibit all contact between a lawyer and a represented party—had Habba just ordered a drink and made small talk, or really, talked about literally anything other than the sexual harassment claim, that would have been fine. But, I guess, “I’ll have the moscato, did you watch the January 6 committee yesterday?” wouldn’t have gone over well.
