A question really can't be incorrect.
A question really can't be incorrect.
Her attorney would likely have done no such thing. The OP lives in CA and her attorney is in CA. The ex-husband lives in NY. The ex husband's NY lawyer is attempting to serve the OP for an action in NY state. So, unless her CA lawyer is admitted to practice law in NY state her attorney could not represent her in that action in NY state. Her lawyer likely then also does not know the rules for service in NY and is not in a position to school his lawyer on how service in NY must be done.
It also matters a great deal as to what it was that was being served. Contrary to your statement above, not all service may be made on the lawyer for the defendant. The rules of most jurisdictions do require that some things, like the initial complaint/petition in an action, must be served on the defendant herself even if you know the person has a lawyer. The rules for serving the opposing lawyer come into play once the action has been started and the opposing lawyer has entered his/her appearance in the case. Again, if the OP's lawyer is not admitted to practice law in NY (whether licensed there or admitted pro hac vice) he or she will not be the attorney of record in that action. And in that case, the rules will not require service be made to the lawyer.
As to a restraining order violation, you don't know that a violation occurred. We don't have the benefit of the restraining order language to look at. If the ex's attorney knew there was a restraining order in effect and that the order prohibited his client from contacting the OP by phone then I agree it was not a good idea for him to give the telephone number to his client. However, that may not be a violation of the rules of professional conduct. Still, the OP could report that and let the attorney disciplinary officials in NY decide that.
I didn’t say an RO violation occurred. I said the attorney may be complicit in a violation of the RO and I believe the attorneys actions should be reported. I would report the actions both to the involved court and the state bar.
So, if the New York attorney didn’t know the op is represented by an attorney, do ya guess he just started calling all the attorneys licensed in California until he found the one representing the op? Obviously not. He was aware the California attorney is representing the op.
Rule 4.2 says this
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.
Are you representing a client if they hired you to represent them if there is no court action in play? Does that representation invoke rule 4.2?
Representing a party goes beyond being attorney of record in a given court action and you know that. You suggesting it only applies if the attorneys are both able to practice in some particular state makes no sense. While it may require an attorney licensed in the state to represent one in actual court activities, that doesn’t preclude one from being represented by some other attorney for purposes outside of the specific court actions.
As to service: if there is no address for purposes of service on record, the New York attorney would need to address the court regarding alternate service. If the New York attorney has been given notice the California attorney represents the op, you know darn well he is going to go to the judge with that and seek permission to serve the op at the California attorney’s address. I don’t believe that would even be necessary if he has been given notice the California attorney represents the op. Thst is the point of giving an opposing attorney notice you are being represented by an attorney, is it not?
He knew the California attorney was or at least had been the lawyer for the OP with respect to something, sure. But we don't know exactly for what matters the CA attorney is representing the OP.
I do know that. I deal with a rule much like NY's rule all the time. The problem is that the rule is not as expansive as you make it out to be. You need to read the rule carefully. The rule states the attorney shall not "not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter." (Bolding added.) So the rule is triggered only when two conditions are met: (1) the attorney is communicating with the other persons about the matter in which he/she is representing his client and (2) the lawyer knows that person is represented by another lawyer in that same matter — as stated by the phrase in the rule that I bolded. As the NY official commentary to Rule 4.2 expressly states: "The prohibition on communications with a represented party applies only in circumstances where the lawyer knows that the party is in fact represented in the matter to be discussed." (Bolding added.)
So, let's suppose that I am representing John in a breach of contract case. I want to talk to Barry as he may have important information about John's case. I know that Barry is represented by Carrie in a divorce case. Under the Rule 4.2, I could talk to Barry and need not go through Carrie because, while Barry does have a lawyer, that lawyer is not representing Barry "in the matter to be discussed", i.e. John's breach of contract case.
The same thing would apply here. If the ex's lawyer were to contact the OP directly (which did not happen here) it would only be a violation if the ex's lawyer knew the OP were represented in the same matter as the one he was contacting her about. As the OP's attorney is in California, it is unlikely that the OP's attorney is admitted to practice in NY since few California attorneys are licensed or otherwise admitted to practice in NY for the simple reason that they are not likely to ever have a client who needs them admitted in NY. And if the OP's lawyer is not admitted to practice in NY then that lawyer cannot represent the OP in a matter in NY. Doing so would violate the rules against the unauthorized practice of law (UPL). That applies whether the purpose of the representation is litigation in court or something else. If it involves a NY matter, then the lawyer needs to be admitted to practice in NY. Moreover, if this is a new action to be filed by the ex's lawyer, the OP would not have yet known about it and thus would not have retained that lawyer yet for that representation. So is it possible that the OP's lawyer represents the OP in that specific matter? Sure, since we don't have all the facts. But from what we do know, is it likely? I think not, for the reasons I've just given.
Again, the representation has to be the same matter. And if the matter is one that is in NY, even if it is not yet in court, that California lawyer had better be admitted to practice in NY or he/she violates the NY law on UPL. That is why the states in which they practice is indeed relevant.
You made the claim that NY attorney would be required to serve the CA attorney without regard to what is being served or the circumstances, i.e. your statement was that as long as the NY attorney knew the OP had an attorney representing her for something (no matter what it is) the NY attorney would be obligated to serve the OP's attorney. That is not the rule. It matters what is being served and whether the attorney for the person being served is representing that person in that lawsuit.
Let's start with the service of the complaint that starts the lawsuit. In NY, service of the complaint is governed by NY Civil Practice Law and Rules (CPLR) 308. If you read that rule, it requires personal service on the defendant himself/herself or on the person's agent for service. The agent for service is not necessarily the defendant's attorney, and the defendant's attorney is not automatically the person's agent for service. Even if the agent for service is the lawyer, the statute allows the service to be made either to the defendant directly or to the agent. Nothing in the rule mandates that service of the complaint must be made on the defendant's attorney.
Now, once the lawsuit is filed, we need to look at how service of motions and other papers are served. In NY that is addressed in court rules specific to each type of court. In the NY Uniform Rules For The Family Court, rule 205.11(b) states: "b) At the time of service of the notice of motion, the moving party shall serve copies of all affidavits and briefs upon all of the attorneys for the parties or upon the parties appearing pro se." A party in a lawsuit is pro se unless an attorney has entered an appearance with the court to represent the person in that lawsuit. So you're correct that the NY attorney must serve copies of motions on the OP's California attorney if the CA attorney has entered an appearance in the case as the OP's attorney. Otherwise, if there is no attorney of record, the OP is pro se and the NY attorney would have to serve the OP.
So, as I said before, it matters what it is that the NY attorney needs to serve and the circumstances of the CA attorney's representation of the OP. If the attorney needs to serve a complaint to start a new action against the OP, then that must be served on the OP (or, if she happens to have one, her agent). Nothing in the rule mandates the complaint be served on her attorney. After the lawsuit has started, service of copies of motions must be made on the OP's attorney if that attorney is representing her in that lawsuit, i.e. has entered his/her appearance as the OP's attorney. Otherwise, the motion must be served on the OP because without an attorney entering an appearance the OP is pro se.
So while you were correct that there are limitations on when an attorney may contact someone represented by another attorney and that there are times when the opposing party's attorney must be served rather than the opposing party herself, your statements were much too broad. The rules on both those things are narrower than you made them out to be. I don't fault you for not knowing the details of this stuff. Unless you've had experience working with these rules you wouldn't have reason to know the exact reach of these rules.
If the ex's attorney knew of the restraining order and if the restraining order prohibited your ex from contacting you by phone then the attorney should not have provided his client with the number. It's possible that the attorney did it inadvertently, but you'd not know that. Whether what the attorney did violates the NY rules of professional conduct, though, is something you don't have to decide. You may file a complaint with the appropriate NY attorney grievance committee. The committee will then decide if the lawyer violated the rules and, if so, what sanction to impose on the lawyer for doing it. You might want to contact your NY attorney for his/her thoughts on it before you do it. If making the complaint might somehow adversely affect the case currently in progress, it might be better to wait to do it until that risk is over. For example, if your lawyer and the ex's lawyer are right now negotiating a resolution to the case it may be better to hold off on the complaint as filing it now may tick off the ex's attorney and make a negotiated resolution harder. In other words, if you want to file the complaint, you can do that, you just want to be smart about the timing of it.
Therefore, restraining order or not, he was entitled to her phone number. The children are 2 and 3, so obviously they don't have their own phone number.
That's why I started the post you quoted as I did: it matters exactly what the restraining order provides and what the attorney knew of it. I don't have the order here to read nor do I know what the attorney knew when he gave the number, so I cannot opine on whether the attorney did anything wrong here.