I am involved in a civil matter in New Jersey. I sent an email to all parties askinh about the status of mediation. I received an email from co-defendents counsel. He wanted to ask me some questions "off the record" about some facts of the case that only I would be able to answer. He assurred me in the email and over the phone that our discussion would be off the record he was just trying to determine whether they were going to make settlement offer to plaintiff.
I spoke with him answered his questions honestly and felt releived. The discussion was amicable and seemed positive. I know that I would have eventually had to answer the same questions under oath either in interrogatories or depositions but now I am concerned about what "off the record " really means. Now am second guessing
Technically, the phrase "off the record" means that no transcript will be made of the statement or conversation. It occurs quite often during a deposition or at trial, where the attorneys and the court often want to have a conversation about some issues to clarify things - before going back on the record, so that when they are back on the record, it comes across more concise and clear.
However, in your context, it is difficult to explain. Representing yourself puts you in a precarious position and makes things more difficult, but it also presents difficulties for adverse attorneys in their discussions and conversations with you. Generally, we cannot talk to the clients on the other side, even if they are co-defendants. We can only do so through their attorneys. However when the opposing client and attorney are the same person, this is unavoidable.
When i speak to a codefendants attorney - there are times that he will share information confidentially with me and I may share information confidentially with him - even information that the other side didn't know, or might not be entitled to - in some ways, this is "off the record".
However, I only do so when I know that it somehow advances my clients' interests, and that I have over time, been able to learn to trust the opposing attorney (normally from prior cases). This strategic sharing of information is often what separates an average lawyer from an excellent lawyer -knowing how to work the litigation process, how to give some small piece of information (that doesn't really hurt your client or that you know they will find out anyway) in exchange for information that helps your client.
That said, doing so, always runs the risk that you might be burned. This risk is even greater when you are not represented.
Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania, Delaware, New Jersey or Federal law apply, unless otherwise specified.
That being said, there is no such thing as "off the record." The answers you gave will be used to formulate questions posed to you in your deposition; they will be used to the advantage of that attorney's client and not you. You may even find the attorney saying "didn't you tell me . . . ." in deposition or at trial. The information you provided can be provided to the other parties as well - there is no protection for you there.
The end result may not be a problem; the whole case might settle favorably for you. However, I am troubled by the actions of that attorney - you are unrepresented, and the actions he appears to have taken do not feel appropriate to me. You should consult an attorney of your own ASAP - being unrepresented in litigation rarely ends well.
/Christopher E. Ezold/
The Ezold Law Firm, P.C.
One Belmont Avenue,
Bala Cynwyd, PA 19004
Off the record is a phrase used in journalism. In law it means a court reporter is not present. Your conversation with opposing counsel about facts of the case was not "off the record" unless it involved settlement discussions which cannot be introduced due to provisions of the various evidence codes and public policy.
Attorney Ezold strikes a significant point that I want to emphasize - an attorney representing another (potentially adverse) party asking questions "off the record" of a pro se party (someone representing him/herself) is inappropriate. More, it may be ethically questionable or worse depending on the information obtained. Depending on the type of questions asked, you may want to contact the Office of Attorney Ethics.
Anything YOU say (as a party to a lawsuit) is potentially evidence as a statement against interest. In layman's terms, you can say something that is damaging to your case. By telling you a conversation is "off the record" the attorney is lulling you into believing anything you say won't come back to haunt you...but you don't know if you were being recorded, or if he was taking notes, or if your conversation was over speaker phone with the other party in the room silently listening. These are examples, obviously.
If you can't afford an attorney, it's probably not in your best interests to pursue litigation - the odds are incredibly stacked against you, no matter how intelligent you are, or how strongly the facts appear to be in your favor. The system is engineered to be manipulated by attorneys who spend years training to master it. (I use the term "manipulate" here in its benign sense, not to suggest something underhanded is going on here.) If you must pursue litigation, at the very least contact Legal Services of NJ in your county, or the local bar association to see if there's a pro bono attorney in your area.
Just don't be surprised when your "off the record" conversation becomes a very much on the record inquiry.
Some thought here:
1. You do not say that you have counsel or not...presumably not?
2. If you had representation the co-defendant counsel would not even have been allowed to speak to you w/o your lawyer agreeing to the interview and in his /her presence.
3. Perhaps the conduct of the attorney is a disciplinary violation under the NJ code of conduct to the extent he may have misrepresented himself taking advantage of a lay person unrepresented by counsel (I can't answer that as I am in NY and CT).
4. My points may be worthless to the extent the attorney had good intentions and you and his client have common goals defending the case. However, if he can throw you under the bus to protect his client at your expense (based on your words) then be forewarned -- nothing was off the record as my learned colleagues have all told you...from our vantage, we don't know whether the co-defendant is in fact an adversary or an ally.
If you haven't retained an attorney you really should get yourself one. This is a very simple question that many non-lawyers can answer. I am not trying to bash you, but merely tell you that you are being outmaneuvered and will be out- lawyered. I hope you realize sooner than later you should retain counsel.
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