Rule 4.2. Communication with Person Represented by Counsel

Unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with:

(a) a person the lawyer knows to be represented by another lawyer in the matter; or

(b) a person the lawyer knows is presently a director, officer, employee, member, shareholder or other constituent of a represented organization and

(1) who supervises, directs or regularly consults with the organization’s lawyer concerning the matter;

(2) who has the authority to obligate the organization with respect to the matter; or

(3) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004. The Louisiana Supreme Court amended this rule effective September 30, 2011 to clarify that a lawyer may communicate with persons identified in either paragraph (a) or (b) if authorized to do so by law, by court order or by the lawyer representing the person in question.

Paragraph (a) of this rule is substantially similar in substance to ABA Model Rule of Professional Conduct 4.2 (2002). The ABA in 2002 added a reference in the corresponding model rule to “court order.” Although a communication with a represented person pursuant to a court order will ordinarily fall within the “authorized by law” exception, the specific reference to a court order was intended to alert lawyers to the availability of judicial relief in the rare situations in which it is needed. These situations are described generally in Comment [6]. See also ABA Ethics 2000 Commission Revision Notes to Model Rule 4.2 (2002).

Paragraph (b) does not appear in the text of ABA Model Rule 4.2. However, this paragraph contains language that is identical in substance to language set forth in Comment 7 to Model Rule 4.2. The LSBA recommended adoption of this paragraph to provide much-needed guidance to Louisiana lawyers regarding which constituents of a represented organization may be contacted directly without having to go through the organization’s lawyer.

Comments to ABA Model Rule 4.2

[1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.

[2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.

[3] The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.

[4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

[5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.

[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.

[7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.

[8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.

[9] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer’s communications are subject to Rule 4.3.

Annotations

Generally

This “anti-contact” rule prohibits lawyers from communicating with represented persons without authority either from the law, the court or the represented person’s lawyer. See generally Restatement (Third) of the Law Governing Lawyers §§ 99-102 (2000). It exists to protect third parties and to safeguard the attorney-client relationship from unexpected and unwarranted intrusions. See, e.g., ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396 (1995). See also In re Blanche, 44 So. 3d 263, 267-70 (disciplining lawyer for adversely affecting a former client’s current representation by preparing and sending an amended bankruptcy plan to the former client without consent from the former client’s current lawyer); In re Frank, No. Misc. 06-04, 2006 WL 1133871 (W.D.La. April 25, 2006) (stating that a lawyer “cannot evade the requirement of obtaining the consent of counsel by closing his eyes to the obvious,” where the lawyer communicated with his clients’ criminal co-defendants and claimed ignorance to whether the co-defendants were represented by counsel).

More particularly, Rule 4.2 protects against the disclosure of privileged communications and “liability-creating” statements. See State v. Gilliam, 748 So. 2d 622, 638 (La. Ct. App. 4th Cir. 1999); see also Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695, 696 (W.D. La. 1997).

Contact Between Opposing Parties

Comment 4 to Model Rule 4.2 states that “parties to a matter may communicate directly with each other….” Model Rules of Prof’l Conduct R. 4.2 cmt. 4 (2002); see also ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 92-362 (1992). Nevertheless, a lawyer may not orchestrate a communication between a client and a represented person in an effort to circumvent this rule. See, e.g., La. Rules of Prof’l Conduct R. 8.4 (2004); see also Restatement (Third) of the Law Governing Lawyers § 99(2) (2000) (permitting a lawyer to assist client in an “otherwise proper communication . . . with a represented non-client,” unless the lawyer thereby seeks to deceive or overreach the nonclient); ABA Formal Op. 11-461 (Aug. 4, 2011). (“Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.”). ABA Formal Op. 11-461 suggests that the following would constitute circumvention of the rule and overreaching:

Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel. To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information.

ABA Formal. Op. 11-461 at 5.

Contact With Constituents and Former Constituents of Business Organizations

The extent to which a lawyer may contact current and former employees of a represented organization is a recurring issue that is addressed in paragraph (b). Prior to the adoption of this paragraph, many lawyers struggled with the issue of contacting current1 employees of a corporate adversary because Louisiana courts had not articulated a bright-line rule. See, e.g., Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695 (W.D. La. 1997); In re Shell Oil Refinery, 143 F.R.D. 105 (E.D. La. 1992); see also Model Rules of Prof’l Conduct R. 4.2 cmt. 4 (2002); Restatement (Third) of the Law Governing Lawyers § 100(2) (2000).

In no event, however, may a lawyer seek to communicate with an employee or former employee who is independently represented by counsel. See La. Rules of Prof’l Conduct R. 4.2(a) (2004). Furthermore, in no event may a lawyer seek to obtain from any present or former organizational constituent “information that the lawyer reasonably should know the non-client may not reveal without violating a duty of confidentiality” to the organization. See Restatement (Third) of the Law Governing Lawyers § 102 (2000).

Contact With Officials and Employees of Governmental Entities

This rule permits a lawyer to contact a person represented by counsel if the lawyer is authorized to do so by law. La. Rules of Prof’l Conduct R. 4.2 (2004). Comment 5 to Model Rule 4.2 states: “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.2 Model Rules of Prof’l Conduct R. 4.2 cmt. 5 (2002). Although the Louisiana Supreme Court has not spoken on the issue, some courts have held that Model Rule 4.2 does not apply in the context of communications with government officials. See Camden v. Maryland, 910 F. Supp. 1115, 1118 (D. Md. 1996); Cal. R. Prof. Cond. 7-103. The inapplicability of Rule 4.2 in this context stems from the First Amendment right to petition the government for redress of grievances. See U.S. Const. amend. I. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 97-408 (1997).

Note that the Restatement of Law Governing Lawyers does not give blanket approval for all communications with all officials of governmental entities. Rather, the Restatement distinguishes contacts in connection with routine litigation from those in connection with matters raising “an issue of general policy.” Restatement (Third) of the Law Governing Lawyers § 101(2) (2000). As to policy-related issues, the anti-contact rule “does not apply to communications with the agency or the officer in the officer’s official capacity.” Id. § 101 (2000). As to routine, “specific-claim litigation” not involving broad public policy issues, ex parte contact is permissible so long as it does not create an opportunity for substantially unfair advantage against the governmental party. Id. cmt.

Remedy: Exclusion of Statements

Louisiana courts have excluded from evidence statements made by represented persons in violation of this rule. For example, in State v. Gilliam, 748 So. 2d 622 (La. Ct. App. 4th Cir. 1999), the Louisiana Fourth Circuit held that “where there is an improper communication discovered or considered before it is used at trial, and a violation of the ethical rule is found, it should be held inadmissible.” See id. (citing Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695 (W.D. La. 1997); In re Shell Oil Refinery, 144 F.R.D. 73 (E.D. La. 1992)).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s attempt to influence a judge, juror, prospective juror or other official by means prohibited by law: disbarment, when a lawyer improperly communicates with someone in the legal system with intent to affect the outcome of the proceeding, and causes significant or potentially significant interference with the outcome of the legal proceeding; suspension, when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding; reprimand, when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference with or potential interference with the outcome of a legal proceeding; and, admonition, when a lawyer engages in an isolated instance of negligence in improperly communicating with an individual in the legal system, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with the outcome of the legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.3 (1992) (Improper Communications With Individuals in the Legal System); id. stds. 6.31-6.34.

Notes

This page was updated on August 5, 2013.

  1. As to former employees, the controlling law has always been clear. A lawyer generally may conduct ex parte interviews with unrepresented former employees of a represented business organization provided that the lawyer does not discuss matters protected by attorney-client privilege. See Buford v. Cargill, Inc., No. 05-0283, 2009 WL 2381328, at *16 (W.D. La. Jul. 30, 2009); see also Schmidt v. Gregorio, 705 So. 2d 742 (La. Ct. App. 2d Cir. 1993) (employees are not “parties” represented by organization’s lawyer); Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695, 697 (W.D. La. 1997); ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 91-359 (1991).
  2. The ABA Ethics 2000 Commission considered concerns aired by prosecutors about the effect of Rule 4.2 on their ability to carry out their investigative responsibilities. However, the Commission decided against recommending adoption of special rules governing communications with represented persons by government lawyers engaged in law enforcement. The Commission concluded that Rule 4.2 strikes the proper balance between effective law enforcement and the need to protect the client-lawyer relationships that are essential to the proper functioning of the justice system. See ABA Ethics 2000 Commission Revision Notes to Model R. 4.2 (2002).